     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


                                    1
 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
