v. Sims , 2019 COA 66 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 9, 2019
2019COA66
No. 15CA0634, People v. Sims — Courts and Court Procedure —
Jurisdiction of Courts — Subject Matter Jurisdiction; Criminal
Law — Indictments
Defendant was convicted of murder, attempted murder, and
sexual assault in connection with a home invasion that occurred
eighteen years before trial.
Initially, the grand jury returned an indictment charging
defendant under the then-current version of the sexual assault
statute. But because the language of the statute in effect at the
time of the crime was different, the prosecution returned to the
grand jury seven months before trial and obtained a superseding
indictment containing a single count of sexual assault referencing
the former version of the statute.
On appeal, defendant argues that the one-count “superseding
indictment” supplanted the original indictment and divested the
district court of jurisdiction over the original murder charges.
A division of the court of appeals rejects that argument,
concluding that because each count of an indictment operates as
its own indictment, the prosecutor may supersede any individual
count. The mere fact that the prosecutor labeled the charging
document a “superseding indictment” did not deprive the court of
jurisdiction over the original charges, as the appellation of a
document is not dispositive.
The division also rejects defendant’s arguments that the
sexual assault charge was barred by the statute of limitations and
that the court erred in excluding evidence under the rape shield
statute. Accordingly, the division affirms the defendant’s
convictions.
COLORADO COURT OF APPEALS 2019COA66
Court of Appeals No. 15CA0634
City and County of Denver District Court No. 12CR10292
Honorable William D. Robbins, Judge
Honorable Kenneth M. Laff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Samuel Sims,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE HARRIS
J. Jones and Ashby, JJ., concur
Announced May 9, 2019
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Mark G. Walta, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶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 for drugs.
¶3 We reject Sims’s challenges and therefore affirm his
convictions.
I. Background
¶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
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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 statute.
¶7 At trial, the prosecution presented testimony from Martinez,
McConnell (who had entered into a plea agreement and was
2
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 charged.
II. 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
3
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 sexual assault count, was filed in July 2014, seven months
before trial.
¶ 12 Sims contends, as he did in the district court, that the
“superseding” indictment supplanted and nullified the original
indictment, thereby divesting the district court of subject matter
jurisdiction over the murder and attempted murder charges. We
disagree.
¶ 13 We review questions of law, including challenges to the court’s
subject matter jurisdiction, de novo. People v. Sandoval, 2016 COA
57, ¶ 14.
¶ 14 Subject matter jurisdiction concerns a court’s authority to deal
with the class of cases in which it renders judgment. Wood v.
People, 255 P.3d 1136, 1140 (Colo. 2011). A court has subject
matter jurisdiction “where it has been empowered to entertain the
4
type of case before it by the sovereign from which the court derives
its authority.” Id. In Colorado, article VI, section 9(1) of our
constitution vests the district court with original jurisdiction in all
criminal cases. See Garcia v. Dist. Court, 157 Colo. 432, 437-38,
403 P.2d 215, 218 (1965).
¶ 15 Still, it is not enough that the court generally has the
authority to decide a particular class of case. Adams Cty. Dep’t of
Soc. Servs. Child Support Enf’t Unit v. Huynh, 883 P.2d 573, 574
(Colo. App. 1994). Subject matter jurisdiction must be properly
invoked before the district court can act. Id.; see also Sandoval,
¶ 53. In a criminal case, the court’s jurisdiction is invoked by the
filing of a legally sufficient complaint, information, or
indictment. People v. Huynh, 98 P.3d 907, 910 (Colo. App. 2004).
¶ 16 An indictment is sufficient if it alleges sufficient facts to permit
the accused to prepare an adequate defense and to assure that the
defendant cannot be prosecuted again for the same crime. People v.
Edebohls, 944 P.2d 552, 554 (Colo. App. 1996). Thus, if the
indictment identifies the essential elements of the crime charged in
the language of the statute, it is legally sufficient. See People v.
Harris, 2016 COA 159, ¶ 70.
5
¶ 17 Sims does not challenge the sufficiency of the original
indictment or dispute that it properly invoked the district court’s
jurisdiction. Instead, he contends that the superseding indictment
replaced the original indictment, leaving the court with jurisdiction
only over the updated sexual assault charge.
¶ 18 But Sims never explains why a prosecutor may not obtain a
partially superseding indictment, as the prosecutor did here. He
acknowledges that no statute, rule, or other authority prohibits the
practice. And, because “each count in an indictment, though
contained in a single instrument, is to be regarded as a separate
indictment,” Gainey v. United States, 318 F.2d 795, 797 (10th Cir.
1963), it follows as a logical matter that any one count can be
superseded. See People v. Edwards, 658 N.Y.S.2d 415, 416 (N.Y.
App. Div. 1997) (“A prosecutor has the freedom to obtain a new
Grand Jury indictment to replace one that is pending, or any count
within it, provided the new, ‘superseding’, indictment is filed prior
to” trial or guilty plea.) (emphasis added).
¶ 19 Contrary to Sims’s argument, the mere fact that the second
indictment was labeled a “superseding” indictment rather than a
“partially-superseding” indictment is not dispositive. The district
6
court’s subject matter jurisdiction does not hinge on the particular
appellation used by the prosecutor to describe a legal document.
See, e.g., Hawkins v. State Comp. Ins. Auth., 790 P.2d 893, 894
(Colo. App. 1990) (“A pleading or court document should not stand
or fall on the appellation it is given by a litigant. It is the substance
of a document that should control, rather than the title by which it
is denominated.”); see also United States v. Blair, 214 F.3d 690,
700-01 (6th Cir. 2000) (“[E]ven if the term ‘superseding’ was
inappropriate to describe the second indictment, such a description
is mere surplusage that can be ignored.”).
¶ 20 Moreover, the district court found, based on its review of the
grand jury transcripts, that the grand jury did not intend to
withdraw the original murder and attempted murder charges and to
replace them with a single charge of sexual assault. Rather,
consistent with the rule that a superseding indictment can replace
a single count of an original indictment, the district court
determined that the grand jury had considered only the sexual
assault charge. We see no reason to question that finding.
¶ 21 And finally, even if we assume that a superseding indictment
ordinarily supplants an original indictment, the subsequent
7
indictment does not divest the court of subject matter jurisdiction
over the original charges. See United States v. Bowen, 946 F.2d
734, 736 (10th Cir. 1991) (“We have found no authority which
supports the proposition that a superseding indictment zaps an
earlier indictment to the end that the earlier indictment somehow
vanishes into thin air.”); see also Morrow v. Ignacio, 183 F. App’x
653, 654 (9th Cir. 2006) (“There is no authority holding that a state
court loses jurisdiction over the charges in the indictment when the
prosecutor returns to the same grand jury to obtain a superseding
indictment.”). A superseding indictment does not “automatically
render the original indictment ineffectual or a nullity.” Jones v.
United States, 99 A.3d 679, 689-90 (D.C. 2014). Rather, multiple
indictments may coexist. Bowen, 946 F.2d at 736.
¶ 22 True, as Sims points out, the prosecution ordinarily elects one
indictment on which it will proceed to trial. But election seems
unnecessary where, as here, the second indictment amends or
supersedes only part of the first. See United States v. Stricklin, 591
F.2d 1112, 1115 n.1 (5th Cir. 1979) (addressing both pending
indictments on appeal because the government indicated it might
8
attempt to proceed on a combination of the original and
superseding indictments).
¶ 23 In any case, the rule requiring election is designed to prevent a
double jeopardy violation, see Bowen, 946 F.2d at 736; it does not
implicate the court’s subject matter jurisdiction. And Sims does not
contend that the superseding indictment raised any double
jeopardy concerns.
¶ 24 At best, then, Sims has identified some sort of procedural
irregularity; he has not established that the court lacked subject
matter jurisdiction. See People v. Daniels, 973 P.2d 641, 646 (Colo.
App. 1998) (failure to file amended information did not deprive the
court of jurisdiction where the defendant had notice of charges).
¶ 25 Procedural irregularities afford no grounds for reversal of a
judgment unless the irregularities prejudiced the substantial rights
of the defendant. Oaks v. People, 150 Colo. 64, 66, 371 P.2d 443,
445-46 (1962).
¶ 26 A grand jury found probable cause that Sims had committed
first degree murder after deliberation, first degree felony murder,
attempted first degree murder, and sexual assault (as defined by
the 2012 statute). At Sims’s request, the district court reviewed the
9
grand jury’s probable cause determination and affirmed it. Another
grand jury (or, possibly, the same grand jury) found probable cause
that Sims had committed sexual assault under the 1994 version of
the statute. At Sims’s request, the district court reviewed that
determination, too, and affirmed it.
¶ 27 Sims does not seriously dispute that he was on notice of the
murder, attempted murder, and sexual assault charges as early as
December 2012, more than two years before trial. On
overwhelming evidence of guilt, a jury convicted Sims of all charges.
¶ 28 Under the circumstances, we discern no basis for vacating
Sims’s first degree murder and attempted murder convictions. See
United States v. Hickey, 580 F.3d 922, 930 (9th Cir. 2009) (“[The
defendant] was fairly on notice that he could be tried for any of the
offenses contained in the third superseding indictment because all
of the indictments remained pending until trial, the factual
predicate remained the same, and the charges were not
substantially broadened.”); see also United States v. Miner, No.
3:11-cr-25, 2012 WL 529590, *3 (E.D. Tenn. Feb. 16, 2012) (“[N]o
prejudice resulted to Defendant as a result of the multiple
10
indictments, and Defendant at all times had adequate notice of the
precise nature of the charges against him.”).
III. The Sexual Assault Charge Was Not Barred by the Statute of
Limitations
¶ 29 In 1994, when Sims raped J.G., the statute of limitations for
sexual assault in violation of section 18-3-402 was ten years. § 16-
5-401(8)(a)(I), C.R.S. 1994. However, section 16-5-401(8)(a.5) —
enacted in 2001 and applicable to offenses committed after July 1,
1991 — eliminated the statute of limitations in certain sexual
assault cases. Ch. 283, secs. 1, 4, § 16-5-401(8)(a.5)(1), 2001 Colo.
Sess. Laws 1057-59.
¶ 30 The statute 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 or
juvenile is determined, in whole or in part, by [DNA evidence]
and . . . the offense has been reported to a law enforcement agency
. . . within ten years after [its] commission.” § 16-5-401(8)(a.5),
C.R.S. 2018.
¶ 31 Sims contends that section 16-5-401(8)(a.5) is inapplicable
because his identity was not “determined” by DNA evidence.
11
According to Sims, the police had identified him as a possible
suspect as early as 1995, and the DNA evidence merely confirmed
their earlier suspicions. We are not persuaded.
¶ 32 We review de novo whether a specific provision of a statute of
limitations applies to an offense. People v. Shores, 2016 COA 129,
¶ 11.
¶ 33 Our primary goal when interpreting a statute is to determine
and give effect to the General Assembly’s purpose and intent in
enacting it. People v. Hernandez, 250 P.3d 568, 571 (Colo. 2011).
Therefore, we look first to the plain language of the statute, giving
words and phrases their plain and ordinary meanings. Id. Where
the language is clear, we enforce the statute as written. Shores,
¶ 16.
¶ 34 Sims contends that DNA evidence “determines” a defendant’s
identity within the meaning of section 16-5-401(8)(a.5) only if the
evidence is “instrumental in actually identifying” a “heretofore
unknown” perpetrator. In effect, Sims reads the statutory term
“determine” to mean “reveal that which was previously unknown.”
In the context of the statutory provision, however, we consider that
definition too narrow. See People in Interest of T.T., 2017 COA 132,
12
¶ 12 (in interpreting statutes, we must read words and phrases in
the context of the entire provision).
¶ 35 “Determine” is defined as “to fix conclusively or
authoritatively,” or “to settle a question or controversy about.”
Webster’s Third New International Dictionary 616 (2002). When
combined with the phrase “in whole or in part,” we construe the
provision to require only that the DNA evidence contribute in some
way to “settling” the question of the perpetrator’s identity.
¶ 36 We are not persuaded by Sims’s argument that we should
construe the word “determines” narrowly, so as to avoid “vitiat[ing]”
the “entire concept of a statute of limitations in sexual assault
cases.” To the contrary, we interpret the legislature’s decision to
modify “determine” with the phrase “in whole or in part” as evidence
of its intent to vitiate the statute of limitations in every case
(involving the enumerated statutes) where DNA evidence assists the
police in “fixing conclusively” on a suspect. That, of course, is the
legislature’s prerogative. Dove v. Delgado, 808 P.2d 1270, 1274
(Colo. 1991) (“It is . . . clearly within the legislature’s domain to
amend statutes of limitations to shorten or lengthen the time after
which certain actions shall not be brought.”).
13
¶ 37 That the DNA evidence played some role in establishing Sims’s
participation in the crimes is undisputed. Thus, we conclude that
section 16-5-401(8)(a.5) applies.
IV. The District Court Did Not Err in Excluding Evidence of J.G.’s
Prior Sexual Conduct
¶ 38 Sims gave pretrial notice, pursuant to the rape shield statute,
section 18-3-407, C.R.S. 2018, of his intent to introduce evidence of
J.G.’s prior sexual conduct. The notice asserted that J.G.’s former
roommate would testify that J.G. had consensual sex with a drug
dealer named “Sparky” — which was Sims’s nickname — in
exchange for drugs shortly before her death, thus explaining the
presence of Sims’s DNA in her vagina.
¶ 39 At a pretrial hearing, the court ruled that the roommate’s
testimony was admissible only to the extent that it could establish a
specific instance of sexual contact with Sims near the date of the
murders. In accordance with that ruling, the roommate was
questioned during trial, outside the presence of the jury, to
determine whether her testimony would meet the admissibility
standard.
14
¶ 40 The roommate testified that she lived with J.G. for some time
until July 1993, a year before the murders. During that period,
J.G. was using drugs. The roommate knew of three dealers from
whom J.G. obtained drugs. One of the dealers went by the name
Sparky. J.G. did not have a job, and she would “prostitute herself”
to get drugs.
¶ 41 The roommate had never met “Sparky” and did not know
anything about him other than that he “came from the east side.”
The roommate did not specifically testify that J.G. had traded sex
for drugs with any of her dealers or that J.G. ever had consensual
sex with “Sparky,” much less that she had done so close in time to
the murders. To the contrary, because the roommate had moved
out of J.G.’s apartment almost a year before J.G.’s sexual assault
and murder, she could not testify about J.G.’s sexual conduct
during the relevant period.
¶ 42 The trial court determined that the roommate’s testimony that
J.G. had previously traded sex for drugs did not satisfy the
statutory criteria for admissibility under the rape shield statute and
excluded the evidence.
15
¶ 43 On appeal, Sims insists that the roommate’s testimony falls
within an exception to the rape shield law because it “suggested”
that Sims’s DNA was “deposited” in J.G.’s vagina and other orifices
“during a consensual sexual encounter” before her murder. We
disagree.
¶ 44 We review a trial court’s determination whether evidence falls
within an exception to the rape shield statute for an abuse of
discretion. People v. Harris, 43 P.3d 221, 225 (Colo. 2002). A court
abuses its discretion if it misconstrues or misapplies the law or if its
ruling is manifestly arbitrary, unreasonable, or unfair. People v.
Vasseur, 2016 COA 107, ¶ 12.
¶ 45 Although the rules of evidence generally favor the admission of
evidence, the rape shield statute creates a presumption that
evidence relating to a victim’s sexual conduct is irrelevant to the
criminal proceedings. People v. Melillo, 25 P.3d 769, 773 (Colo.
2001). The general prohibition on admission of such evidence is
qualified, however, by three statutory exceptions. Evidence is
admissible under the rape shield statute if it is (1) evidence of the
victim’s or witness’s prior or subsequent sexual conduct with the
actor; or (2) evidence of specific instances of sexual activity showing
16
the source or origin of semen, pregnancy, disease, or any similar
evidence of sexual intercourse offered for the purpose of showing
that the act or acts charged were or were not committed by the
defendant. § 18-3-407(1)(a)-(b). Even if sexual conduct evidence
does not fall within one of these exceptions, the presumption of
irrelevance can nevertheless be rebutted if (3) the defendant makes
an offer of proof showing that the evidence is relevant to a material
issue in the case. § 18-3-407(2); see also Melillo, 25 P.3d at 774.
Evidence proffered under the third exception is subject to relevancy
and prejudice limitations under CRE 401 and 403, People v. Cook,
2014 COA 33, ¶ 38, and the proponent of such evidence must
establish the relevance and materiality of the sexual history
evidence before trial, People v. MacLeod, 176 P.3d 75, 80 (Colo.
2008).
¶ 46 Evidentiary rules of relevancy are concerned with whether
proposed evidence makes a fact of consequence more or less
probable, and whether that probative value is substantially
outweighed by any danger of unfair prejudice caused by the
evidence. Id. at 80-81.
17
¶ 47 Sims’s theory of defense was that he and J.G. had a
consensual sexual encounter just before her murder, which
explained why his semen was recovered from her vagina (and very
likely her anus) right after she was killed. Relying on the first and
third exceptions to the rape shield statute, Sims says that the
roommate’s testimony was admissible because it “suggested” that
J.G. and Sims had a “prior sexual relationship.”
¶ 48 The roommate’s testimony, though, did not suggest that J.G.
and Sims had a prior sexual relationship. The roommate could only
say that J.G. had a dealer named “Sparky” and that, at some point
in 1993, J.G. was “prostituting herself” for drugs. She did not link
“Sparky” to Sims; she did not testify that J.G. traded sex for drugs
with any of her dealers, including “Sparky”; and she did not say
that J.G. and “Sparky” had ever engaged in consensual sex.
(Evidence that J.G. was “prostituting herself” with unidentified men
in exchange for drugs was surely not admissible. See People v.
Braley, 879 P.2d 410, 415 (Colo. App. 1993).)
¶ 49 The roommate’s testimony that J.G. had a dealer named
“Sparky” and was “prostituting herself” for drugs in 1993 could not,
on its own, have led to a reasonable inference that J.G. was
18
involved in a consensual sexual relationship with Sims during the
period shortly before the murders.
¶ 50 And even if the roommate’s testimony could have permitted
the inference that J.G. and Sims had a “prior sexual relationship,”
that fact was not material by itself. To support Sims’s theory of
defense, that fact had to reasonably lead to the further inference
that because J.G. and Sims had a prior sexual relationship, they
had a consensual sexual encounter on or around July 12, 1994,
thereby accounting for the presence of Sims’s semen inside J.G.’s
vagina. But “[p]resumption and inferences may be drawn only from
facts established, and presumption may not rest on presumption or
inference on inference.” People v. Ayala, 770 P.2d 1265, 1268
(Colo. 1989) (quoting Tate v. People, 125 Colo. 527, 247 P.2d 665
(1952)); People v. Donald, 2018 COA 103, ¶ 24.
¶ 51 Thus, the roommate’s testimony that J.G. was “prostituting
herself” for drugs in 1993 did not make any fact of consequence
more or less probable. The district court therefore did not abuse its
discretion in excluding the evidence under the rape shield statute.
¶ 52 Because we are not persuaded that the roommate’s testimony
was relevant and admissible, we also conclude its exclusion did not
19
abridge Sims’s right to present a defense. See People v. Scearce, 87
P.3d 228, 233 (Colo. App. 2003) (the right to present a defense
requires only that the defendant be permitted to introduce all
relevant and admissible evidence).
¶ 53 In light of our conclusion, we need not address Sims’s
argument that the district court erred in excluding the roommate’s
testimony as hearsay.
V. Conclusion
¶ 54 The judgment of conviction is affirmed.
JUDGE J. JONES and JUDGE ASHBY concur.
20