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People v. Shores

Court of Appeals of Colorado, Fifth Division

September 8, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Donald Ray Shores, Defendant-Appellant.

         City and County of Denver District Court No. 14CR3123 Honorable Elizabeth A. Starrs, Judge

          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


          BERGER, JUDGE

         ¶ 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 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.

         ¶ 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 1994[1] 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.

         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. 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 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, ΒΆ 8. "The plainness or ambiguity of statutory language is determined by reference to the ...

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