COLORADO COURT OF APPEALS

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),

; Ch. 199, sec. 1, § 18-3-402(1),

; Ch. 171, sec. 1, § 18-3-402(1)(a),

.

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),

.

¶ 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,

(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,

(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),

-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,

.

¶ 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,

(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,

. “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,

(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,

. “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.”

(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,

(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

-193b (2015); 720

Ill. Comp. Stat. 5/3-5 (2015);

(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,”

-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,”

(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,

(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,

. 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,

(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,

.

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,

(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,

.

¶ 34 In Spoto,

, 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,

.

¶ 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,

(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,

(Colo. 2002); see also Yusem,

. CRE 404(b)

evidence can also establish “intermediate facts, themselves

probative of ultimate facts.” Yusem,

. 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,

.

¶ 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),

; see also Ch. 199, sec. 1, § 18-3-402(1),

. 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,

(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,

(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,

; see also Everett,

(“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,

(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,

(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,

.

¶ 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,

.

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,

.

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.”

(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.”

.

¶ 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,

.

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,

(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,

. Although similarity may be

necessary to give the evidence probative force if admitted for certain

purposes, see

, “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,

(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,

, ¶ 58 n.4.

23