and County of Denver District Court No. 12CR10292. Honorable
William D. Robbins, Judge. Honorable Kenneth M. Laff, Judge.
J. Weiser, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
G. Walta, Alternate Defense Counsel, Denver, Colorado, for
Judges: Opinion by JUDGE HARRIS. J. Jones
and Ashby, JJ., concur.
[¶ 1] Eighteen years after defendant Samuel
Sims and three accomplices committed a brutal home invasion,
the People charged Sims with murder, attempted murder, and
sexual assault in connection with the incident. A jury
convicted him of all charges.
[¶ 2] On appeal, Sims challenges his
convictions on three grounds: (1) the "
superseding" indictment, which contained only a single,
amended sexual assault charge, divested the district court of
subject matter jurisdiction over the charges contained in the
original indictment; (2) the sexual assault charge was barred
by the statute of limitations; and (3) the district court
erred in excluding testimony, under the rape shield statute,
that one of the victims was a prostitute who had traded sex
[¶ 3] We reject Sims's challenges and
therefore affirm his convictions.
[¶ 4] On July 12, 1994, Sims, Jackie
McConnell, and two other men broke into the home of Mack
Martinez, a drug dealer known to McConnell, in search of
drugs and money. Once inside, the four intruders bound
Martinez and his two house guests, tortured them, and slit
their throats. Only Martinez survived. Before they murdered
Martinez's female friend, J.G., Sims and one of his
accomplices raped her.
[¶ 5] The police recovered DNA evidence from
J.G.'s body, but testing did not lead to any suspects. In
2009, police obtained a DNA sample from Sims. They later
conducted further forensic analysis of the DNA evidence and
determined that Sims was the major source of the DNA
recovered from J.G.'s vagina, and that he was a likely
source of the DNA recovered from J.G.'s anus. (According
to the prosecution's DNA expert, the chances that someone
other than Sims was the source of the DNA from the anal swab
were 1 in 7.9 billion.)
[¶ 6] In 2012, a grand jury returned an
indictment charging Sims with two counts of first degree
murder after deliberation, two counts of first degree felony
murder, one count of attempted murder, and one count of
sexual assault. The sexual assault count tracked the
then-current statutory language, so, before trial, the
prosecution obtained a second indictment charging Sims with
one count of sexual assault under the 1994 version of the
[¶ 7] At trial, the prosecution presented
testimony from Martinez, McConnell (who had entered into a
plea agreement and was cooperating with the prosecution), and
four other witnesses (friends or acquaintances of Sims) who
testified that, shortly after the home invasion, Sims had
confessed his involvement in the crimes.
[¶ 8] Though Sims had initially denied
knowing J.G., at trial he suggested that his DNA was present
in J.G.'s vagina because he had traded drugs for sex with
J.G. at around the time of the murders. To support that
theory of defense, he sought to present testimony from a
former roommate of J.G.'s that, a year before her murder,
J.G. worked as a prostitute and occasionally traded sex for
drugs with her suppliers, one of whom had the same nickname
as Sims. The court excluded the roommate's testimony
under the rape shield statute.
[¶ 9] As noted, a jury convicted Sims as
The Superseding Indictment Did Not Divest the District Court
of Jurisdiction Over the Original Indictment
[¶ 10] The original indictment was filed in
December 2012. In addition to the murder and attempted murder
counts, the indictment charged Sims with one count of sexual
assault under the 2012 version of the sexual assault statute.
See § 18-3-402(1)(a), (5), C.R.S. 2012. But the
language of the 1994 version of the statute, in effect when
Sims was alleged to have committed the crime, was slightly
different. See § 18-3-402(1)(a),(3), C.R.S. 1994.
[¶ 11] After initially moving to amend the
indictment, the prosecution elected to return to the grand
jury for a second indictment charging sexual assault under
the earlier version of the statute. A " superseding
indictment," which contained only the new version of the