COLORADO COURT OF APPEALS 2016COA129
Court of Appeals No. 15CA1177 City and County of Denver District Court No. 14CR3123 Honorable Elizabeth A. Starrs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Donald Ray Shores,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE BERGER Román and Bernard, JJ., concur
Announced September 8, 2016
Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Danyel S. Joffe, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Donald Ray Shores, appeals the judgment of
conviction entered on a jury verdict finding him guilty of first degree
sexual assault. He argues that the trial court erred in
(1) determining that the statute of limitations had not expired before
the prosecution filed charges and (2) admitting CRE 404(b) evidence
of a sexual assault allegedly committed by Shores against another
victim. We address and reject these arguments and affirm.
I. Facts and Procedural History
¶2 In the early morning of September 6, 1994, the police
responded to an assault call regarding an elderly woman — the
victim — who had been found badly beaten in a Denver park. A
police officer who responded to the call testified that the victim’s
blouse was torn and she had substantial injuries to her face.
¶3 While the victim was receiving treatment at the hospital, a
nurse noticed evidence of injury to her vaginal area. The
gynecologist who subsequently examined the victim testified that
there were abnormal abrasions and bleeding in her vaginal area and
inside her vagina. The gynecologist opined that a normal woman
the victim’s age — she was sixty-seven at the time of the assault —
could not have received those injuries without experiencing severe
1 pain during intercourse. Because of the nature and significance of
the victim’s injuries, the gynecologist concluded that they were
consistent with an act of forced sexual intercourse.
¶4 A psychiatrist who also examined the victim at the hospital
testified that the victim was very disorganized and confused, and
she opined that the victim was not able to care for herself. The
psychiatrist testified that had it been determined that the victim
needed surgery because of her facial fractures, the hospital would
have needed to petition the court for a guardian because the victim
was not mentally competent to consent to surgery. (Ultimately, it
was determined that the victim did not need surgery.)
¶5 At the time of the assault, the victim lived at an assisted living
facility. A caretaker at the facility testified that it was difficult to
speak with the victim because she was shy, not very talkative, and
her speech was difficult to understand. No statement by the victim
that she was sexually assaulted, or denying that she was sexually
assaulted, was admitted at trial, and the victim never identified
Shores as her attacker. Although DNA was extracted from sperm
found in the victim’s vagina during a sexual assault examination,
no suspect was initially identified from the DNA evidence.
2 ¶6 The victim died in 2000 from cancer. In 2010, the DNA
evidence from the victim’s case was matched to Shores’ DNA, but
the district attorney’s office chose not to file charges against Shores
at that time.
¶7 Several years later, the Denver Police Department learned that
Shores had been tied, through DNA, to a 2013 sexual assault of a
woman in Texas. This information led to the filing of charges in this
case in 2014. Shores was charged with first degree sexual assault
under the statute effective in 19941 and a crime of violence
sentence enhancer.
¶8 Shores did not testify at trial but his counsel argued that
Shores had consensual intercourse with the victim, soon after
which she was sexually assaulted by someone else in an unrelated
incident. The jury rejected this argument and convicted Shores as
charged. The trial court sentenced Shores to twenty-five years’
imprisonment.
1See Ch. 151, sec. 2, § 18-3-402(3)(b), 1985 Colo. Sess. Laws 666; Ch. 199, sec. 1, § 18-3-402(1), 1983 Colo. Sess. Laws 698; Ch. 171, sec. 1, § 18-3-402(1)(a), 1975 Colo. Sess. Laws 628.
3 II. Statute of Limitations
¶9 Shores argues that the trial court erred in denying his motion
to dismiss for failure to file charges within the statute of limitations.
Specifically, he contends that section 16-5-401(8)(a.5), C.R.S. 2015,
which eliminates the statute of limitations in first degree sexual
assault cases if certain circumstances exist, does not apply in this
case. Therefore, according to Shores, the ten-year statute of
limitations in effect in September 1994 applies instead. See Ch.
292, sec 4, § 16-5-401(8)(a), 1993 Colo. Sess. Laws 1727.
¶ 10 Because the ten-year limitation period had expired prior to
June 2014 when the charges were filed, Shores argues that the
charges were filed after the statute of limitations had run, barring
his prosecution. We reject this argument because we conclude that
the court correctly applied section 16-5-401(8)(a.5).
¶ 11 Whether a specific provision of a statute of limitations applies
to an offense is a question of law that we review de novo. See
People v. McKinney, 99 P.3d 1038, 1041 (Colo. 2004).
¶ 12 In 2001, the General Assembly “carved out an exception” to
the ten-year statute of limitations that applied to certain sexual
assault offenses by enacting section 16-5-401(8)(a.5). People v.
4 Hicks, 262 P.3d 916, 918 (Colo. App. 2011). The exception applies
to offenses committed after July 1, 1991, including first degree
sexual assault under section 18-3-402, C.R.S. 2015, as it existed
prior to July 1, 2000. Ch. 283, secs. 1, 4, § 16-5-401(8)(a.5)(I),
2001 Colo. Sess. Laws 1057-59.
¶ 13 Section 16-5-401(8)(a.5) provides that there is “no limit on the
period of time during which a person may be prosecuted after the
commission of [an] offense” if “the identity of the defendant . . . is
determined, in whole or in part, by patterned chemical structure of
genetic information, and . . . the offense has been reported to a law
enforcement agency . . . within ten years after [its] commission.”2
¶ 14 Accordingly, there is no time limit for prosecuting certain
sexual assaults committed after July 1, 1991, if (1) the defendant’s
identity is determined in whole or in part by DNA and (2) the offense
is reported to a law enforcement agency within ten years after its
commission. Hicks, 262 P.3d at 918.
¶ 15 Shores concedes that his identity was determined in whole or
in part by DNA, but he argues that the terms of section
2DNA is a “patterned chemical structure of genetic information” within the meaning of section 16-5-401(8)(a.5), C.R.S. 2015. See People v. Hicks, 262 P.3d 916, 918 (Colo. App. 2011).
5 16-5-401(8)(a.5) are not met because the victim never reported the
crime to law enforcement. The trial court rejected this argument,
concluding that the statute does not require that the victim be the
person who reported the offense, only that the offense has been
reported. We agree with the court’s interpretation.
¶ 16 In interpreting a statute, “our primary purpose is to ascertain
and give effect to the intent of the General Assembly.” People v.
Johnson, 2013 COA 122, ¶ 7. “To discern the legislative intent, we
first look at the language of the statute and give statutory words
and phrases their plain and ordinary meaning.” People v. Davis,
218 P.3d 718, 723 (Colo. App. 2008). If the statutory language is
unambiguous, we apply the words as written without resort to other
rules of statutory interpretation. People v. Van De Weghe, 2012
COA 204, ¶ 8. “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context
in which that language is used, and the broader context of the
statute as a whole.” Id. (citation omitted).
¶ 17 The language of the relevant portion of section 16-5-401(8)(a.5)
— that “the offense has been reported to a law enforcement agency”
— contains no requirement that the victim be the person who
6 reported the offense to the police. “[A] court should not read into a
statute an exception, limitation, or qualifier that its plain language
does not suggest, warrant, or mandate.” People v. Sorrendino, 37
P.3d 501, 504 (Colo. App. 2001). Because the statute makes no
reference to the manner in which the offense must be reported, or
by whom, we will not presume that the General Assembly intended
its application to be limited to cases in which the victim reported
the offense.
¶ 18 Several other states that have exceptions to their statutes of
limitations for certain sexual offenses in which the defendant is
identified by DNA do require that the victim be the person who
reported the offense. See Conn. Gen. Stat. § 54-193b (2015); 720
Ill. Comp. Stat. 5/3-5 (2015); Okla. Stat. Ann. tit. 22, § 152(C)
(2015). However, they do so by using explicit language to this
effect, providing that there is no time limit for prosecuting certain
sexual assaults if the defendant’s identity is obtained through DNA
and:
“the victim notified any police officer . . . not later than five
years after the commission of the offense,” Conn. Gen. Stat.
§ 54-193b (emphasis added);
7 “the victim reported the offense to law enforcement authorities
within three years after the commission of the offense,” 720 Ill.
Comp. Stat. 5/3-5(a) (emphasis added); or
“the victim notified law enforcement within twelve (12) years
after the discovery of the crime,” Okla. Stat. Ann. tit. 22,
§ 152(C)(2).
¶ 19 Thus, because the General Assembly could have restricted the
application of section 16-5-401(8)(a.5) to cases in which the victim
reported the offense but did not do so, “we do not read [such an]
additional restriction[] into the statute.” Springer v. City & Cty. of
Denver, 13 P.3d 794, 804 (Colo. 2000). Rather, under the plain
language of the statute, it applies in all cases in which a law
enforcement agency has in some way received a report of the
offense (and the other statutory terms are met). This condition
indisputably was met here.
¶ 20 The police had known about the physical assault on the victim
from their response to the initial call, and they received further
information from the hospital about her condition, including the
results of the sexual assault examination kit. The sexual assault
8 therefore “ha[d] been reported to a law enforcement agency . . .
within ten years after [its] commission.” § 16-5-401(8)(a.5).
¶ 21 Accordingly, there was no statutory time limit in which to file
charges against Shores, and the trial court correctly denied his
motion to dismiss.
III. CRE 404(b) Evidence
¶ 22 Shores argues that the trial court abused its discretion in
admitting CRE 404(b) evidence of the 2013 sexual assault in Texas.
We disagree.
¶ 23 We review a trial court’s decision to admit other acts evidence
under CRE 404(b) for an abuse of discretion. People v. Cisneros,
2014 COA 49, ¶ 103. A trial court has “substantial discretion when
deciding whether to admit evidence of other acts,” and its ruling will
not be disturbed absent an abuse of that discretion. Yusem v.
People, 210 P.3d 458, 463 (Colo. 2009). A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or when it misconstrues or misapplies the law. People v.
Williams, 2016 COA 48, ¶ 18.
9 A. Facts
¶ 24 The prosecution moved pretrial to admit under CRE 404(b)
and section 16-10-301, C.R.S. 2015, evidence relating to “[Shores’]
aggravated sexual assault of [D.B.], a 49-year-old disabled woman
under the care of a home health provider in . . . Texas.” The
prosecution sought to admit the evidence “[t]o refute the defense of
consent”; “[t]o show a common plan, scheme, or design”; and “[t]o
show the absence of mistake or accident.” In a thorough, written
order, the trial court granted the motion over defense counsel’s
objection and admitted the evidence for the purposes described by
the prosecution.
¶ 25 Before D.B. testified at trial, the court instructed the jury that
it could consider her testimony only for the above purposes and “for
no other purpose.”
¶ 26 D.B. testified that she was fifty years old and disabled because
of a hip impairment. She testified that in May 2013, she was
waiting outside a hospital in a wheelchair for a taxi when a man
offered her a ride home, which she accepted. When asked by the
prosecutor if this man was in the courtroom, she could not identify
Shores.
10 ¶ 27 D.B. testified that the following evening, the man who had
given her a ride came back to her apartment. She testified that
they were together in the living room for a while, and then he went
into her bedroom. Sometime later, she took a few sleeping pills
(which she testified she took every night) and got ready for bed, but
when she went into her bedroom she found the man asleep in her
bed.
¶ 28 D.B. testified that she lay down next to the man on the bed
and started to fall asleep; “the next thing [she] kn[e]w,” he was
having intercourse with her. She testified that she did not consent
to the intercourse, and it was very painful for her because of the
pressure it put on her bad leg. She later noticed blood when she
went to the bathroom, and she had pain in her “pelvic area.” The
next morning, after the man had left, D.B. told her in-home
caregiver about the blood. Her caregiver called the police, and D.B.
went to the hospital.
¶ 29 A nurse who examined D.B. at the hospital testified that she
noted blood in D.B’s vaginal area and also saw several injuries. The
nurse performed a sexual assault examination kit, from which the
11 police obtained DNA evidence. A DNA analyst testified that the DNA
evidence matched a DNA sample from Shores.
¶ 30 In closing argument, the prosecutor discussed the similarities
between the victim and D.B., arguing that they showed that Shores
“had a common plan, scheme or design to target vulnerable women
with disabilities and a lot of limitations” and sexually assault them.
The prosecutor also argued that the evidence relating to D.B.
showed lack of consent and absence of mistake or accident: that the
evidence made it unlikely that Shores had a consensual encounter
with the victim but was mistakenly accused of sexual assault
because someone else coincidentally assaulted her shortly
afterward.
¶ 31 Before deliberations, the jury was provided with a written
limiting instruction providing the purposes for which the evidence
could be considered and stating that evidence admitted for a limited
purpose could not be considered except for that purpose.
B. Law
¶ 32 Relevant evidence is generally admissible at criminal trials.
CRE 401. However, specific evidentiary rules limit the admissibility
of certain types of evidence, relevant or not. CRE 403 excludes
12 evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice.” Evidence may also be excluded under
CRE 404(b), which prohibits the admission of evidence of “other
crimes, wrongs, or acts . . . to prove the character of a person in
order to show that he acted in conformity therewith” (often
described as propensity).
¶ 33 CRE 404(b) thus excludes other acts evidence if its only logical
relevance “depends upon an inference that a person who has
engaged in such misconduct has a bad character and the further
inference that the defendant therefore engaged in the wrongful
conduct at issue.” People v. Spoto, 795 P.2d 1314, 1318 (Colo.
1990). But such evidence may be admissible if admitted for
purposes independent of an inference of bad character such as to
show “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” CRE 404(b); see also
Yusem, 210 P.3d at 463.
¶ 34 In Spoto, 795 P.2d at 1318, the Colorado Supreme Court
derived from these rules a four-part test to determine whether other
acts evidence is admissible. To be admissible, (1) the other acts
evidence must relate to a material fact; (2) the evidence must be
13 logically relevant; (3) the logical relevance must be independent of
the inference prohibited by CRE 404(b) that the defendant was
acting in conformity with his bad character; and (4) the probative
value of the evidence must not be substantially outweighed by the
danger of unfair prejudice caused by its admission. Id.; see also
People v. Jones, 2013 CO 59, ¶ 15.
¶ 35 In cases involving sexual offenses, including first degree
sexual assault under the pre-2000 version of section 18-3-402, the
General Assembly has “specifically delineated the CRE 404(b)
admissibility requirements for other acts evidence.” Jones, ¶ 13
(citing § 16-10-301(1)); see also § 16-10-301(2). The General
Assembly has declared that in cases involving sexual offenses,
“there is a greater need and propriety for consideration by the fact
finder of evidence of other relevant acts of the accused . . . whether
occurring prior to or after the charged offense,” and thus “it is
expected that normally the probative value of such evidence will
outweigh any danger of unfair prejudice, even when incidents are
remote from one another in time.” § 16-10-301(1).
¶ 36 Under section 16–10–301(3), the prosecution “may introduce
evidence of other acts of the defendant to prove the commission of
14 the offense as charged for any purpose other than propensity.”
Such purposes include:
Refuting defenses, such as consent . . . ; showing a common plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus as part of a unified transaction to the other act; showing . . . absence of mistake or accident; or for any other matter for which it is relevant.
Id.
C. Application
¶ 37 Shores argues that because the only common factor between
this case and D.B.’s is the DNA evidence, the evidence relating to
D.B. served no purpose other than that prohibited under CRE
404(b): to show that Shores sexually assaulted D.B. and thus was a
bad person, and to infer he therefore sexually assaulted the victim.
We reject this argument and conclude that the trial court did not
abuse its discretion in determining that the evidence met all four
prongs of the Spoto test.
1. Material Fact — Spoto Prong One
¶ 38 A material fact is a fact “that is of consequence to the
determination of the action.” Spoto, 795 P.2d at 1318 (citation
15 omitted). Generally, CRE 404(b) evidence can be used to prove the
actual elements of a charged offense (also called ultimate facts):
“that the accused committed the guilty act” — his “identity” — and
“that he did so with the required intent or state of mind and without
legal excuse or justification.” People v. Rath, 44 P.3d 1033, 1040
(Colo. 2002); see also Yusem, 210 P.3d at 464. CRE 404(b)
evidence can also establish “intermediate facts, themselves
probative of ultimate facts.” Yusem, 210 P.3d at 464. Plan,
scheme, design, and modus operandi, for example, are “well-
accepted methods of proving the ultimate facts necessary to
establish the commission of a crime, without reliance upon an
impermissible inference from bad character.” Rath, 44 P.3d at
1040.
¶ 39 First degree sexual assault was defined under the pre-2000
statute as the knowing infliction of sexual intrusion or sexual
penetration on a victim where the defendant “cause[d] submission
of the victim through the actual application of physical force or
physical violence.” Ch. 171, sec. 1, § 18-3-402(1)(a), 1975 Colo.
Sess. Laws 628; see also Ch. 199, sec. 1, § 18-3-402(1), 1983 Colo.
Sess. Laws 698. The statute “equate[d] the victim’s nonconsent
16 with proof that the defendant . . . caused the victim’s submission by
force,” and thus the conduct prohibited by the statute “by its very
nature negate[d] the existence of the victim’s consent.” Dunton v.
People, 898 P.2d 571, 573 (Colo. 1995).
¶ 40 Because Shores conceded that he had intercourse with the
victim, the only issue at trial was whether Shores caused the victim
to submit by force or violence or whether the victim consented.
Shores’ “defense theory of consent concern[ed] the material fact of
the actus reus of sexual assault” because the prosecution had to
prove that the victim did not consent to having sex with Shores —
that he caused her submission by force instead. People v. Everett,
250 P.3d 649, 655-56 (Colo. App. 2010). The evidence relating to
D.B. — as admitted for the purpose of refuting the defense of
consent or showing a common plan, scheme, design, or absence of
mistake or accident — bore on this issue. It therefore was probative
of the ultimate fact of whether or not Shores committed the offense
charged. See Rath, 44 P.3d at 1040; see also Everett, 250 P.3d at
655 (“Because the defendant’s use of force or [violence] is an
element of the crime of sexual assault, and because such conduct is
relevant to prove that the victim did not consent, evidence of other
17 acts that is offered to prove the defendant’s actions at the time of
the sexual encounter relates to a genuinely disputed material fact.”)
(citation omitted).
2. Logical Relevance Independent of Bad Character Inference — Spoto Prongs Two and Three
¶ 41 Evidence of other acts is logically relevant to prove a material
fact if “it has a tendency to make the existence of the fact more or
less probable than it would be without the evidence.” Kaufman v.
People, 202 P.3d 542, 552 (Colo. 2009). Evidence indicating a
common plan may be relevant under this standard when, “because
of the striking similarities in the acts, the evidence makes it at least
somewhat more probable that [the] defendant was . . . implementing
the plan in committing the crime alleged.” People v. Delgado, 890
P.2d 141, 144 (Colo. App. 1994).
¶ 42 Here, the evidence relating to D.B. indicated that Shores
engaged in a similar pattern of behavior — intercourse that caused
pain and vaginal injury — with victims who shared similar
characteristics — older women whose disabilities made them
particularly vulnerable. Because of these similarities, the evidence
related to D.B. makes it more probable that Shores was
18 implementing a common plan when he had intercourse with the
victim, and the fact that he had a nonconsensual sexual encounter
with D.B. makes it more probable that one element of this plan was
use of force rather than consent. In this way, the relevance of the
evidence is not that it shows Shores as the type of person who
sexually assaults women, which would be the prohibited bad
character inference. Rather, “[t]he inference relied on arises . . .
from the demonstration of [Shores’] pattern of using a particular
technique to accomplish a particular end.” Rath, 44 P.3d at 1041.
¶ 43 Accordingly, the evidence relating to D.B. was logically
relevant independent of the bad character inference because it had
a tendency to make it more probable that the victim did not consent
than it would be without the evidence. See Kaufman, 202 P.3d at
552.
3. CRE 403 — Spoto Prong Four
¶ 44 In assessing the probative value of the evidence, a court must
assess the evidence’s “incremental” probative value: what weight
the evidence adds to the prosecution’s case. Rath, 44 P.3d at 1041.
In so doing, the court weighs “the logical force of the evidence and
the proponent’s need for the evidence in light of other available
19 evidence.” Id. (citation omitted). The court then must balance the
evidence’s incremental probative value against the danger of unfair
prejudice, “afford[ing] the evidence the maximum probative value
attributable by a reasonable fact finder and the minimum unfair
prejudice to be reasonably expected.” Id. at 1043.
¶ 45 In assessing this prong of Spoto, the trial court concluded that
it could not say that the probative value of the evidence relating to
D.B. would be substantially outweighed by unfair prejudice. The
court emphasized that the incident involving D.B. was “similar in
important respects” to that involving the victim and “directly
address[ed] [Shores’] defense of consent.” We conclude that the
court acted within its discretion in making this determination.
¶ 46 Because the victim had died and no statements of hers were
admitted (and Shores did not testify), there was no direct evidence
regarding consent. Although the testimony regarding the victim’s
injuries and her mental competency provided circumstantial
evidence that she did not consent, the evidence relating to D.B.
added substantial strength to that inference. The prosecution’s
need for the evidence thus was great. See Rath, 44 P.3d at 1041.
20 ¶ 47 Shores argues that because of the remoteness in time and
location of the incidents and their factual distinctions, the probative
value of the evidence relating to D.B. was negligible. However,
remoteness is only one factor a court should consider in
determining the probative value of other acts evidence, see Adrian v.
People, 770 P.2d 1243, 1245-46 (Colo. 1989), and the General
Assembly has expressed a policy favoring the admission of other
acts evidence “even when incidents are remote from one another in
time.” § 16-10-301(1).
¶ 48 Moreover, “CRE 404(b) contains no separate requirement of
similarity.” Rath, 44 P.3d at 1041. Although similarity may be
necessary to give the evidence probative force if admitted for certain
purposes, see id. at 1042, “it is not essential that the means of
committing the other crimes replicate in all respects the manner in
which the crime charged was committed,” People v. Garner, 806
P.2d 366, 375 (Colo. 1991). The trial court determined that neither
“the nearly two decades” between the two incidents nor their
dissimilarities prohibited admission in light of their similarities and
the evidence’s relevance to the issue of consent. This determination
21 was not manifestly arbitrary, unreasonable, or unfair. See
Williams, ¶ 18.
¶ 49 The trial court also instructed the jury on the limited purposes
for which it could consider the other acts evidence, thus
“alleviat[ing] the risk that the jury would use the testimony for the
prohibited purpose of inferring” bad character and conformity
therewith. Spoto, 795 P.3d at 1321. The prosecutor argued only
these limited purposes during closing argument and did not suggest
that the jury should consider evidence relating to D.B. to infer that
Shores was the type of person who committed sexual assault. To
the contrary, the prosecutor explicitly told the jury that it should
not, and was not allowed to, decide that Shores was a bad person
for assaulting D.B. and therefore must have committed the assault
against the victim.
¶ 50 Accordingly, the trial court did not abuse its discretion in
determining that the probative value of the evidence relating to D.B.
was not substantially outweighed by the danger of unfair prejudice
caused by its admission.3
3In his reply brief, Shores appears to raise a sufficiency of the evidence challenge, but he did not make a similar argument in his
22 IV. Conclusion
¶ 51 The judgment of conviction is affirmed.
JUDGE ROMÁN and JUDGE BERNARD concur.
opening brief. We generally do not consider arguments raised for the first time in reply briefs. See People v. Montante, 2015 COA 40, ¶ 58 n.4.