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
S. Joffe, Alternate Defense Counsel, Denver, Colorado, for
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.
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
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 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.
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
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
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]
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, ¶ 8. "The plainness or ambiguity of statutory
language is determined by reference to the ...