COLORADO COURT OF APPEALS                                      2016COA129


Court of Appeals No. 15CA1177
City and County of Denver District Court No. 14CR3123
Honorable Elizabeth A. Starrs, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donald Ray Shores,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                         Opinion by JUDGE BERGER
                       Román and Bernard, JJ., concur

                        Announced September 8, 2016


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
¶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


                                    1
 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.


                                      2
¶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 19941 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.




 1See Ch. 151, sec. 2, § 18-3-402(3)(b), 1985 Colo. Sess. Laws 666;
 Ch. 199, sec. 1, § 18-3-402(1), 1983 Colo. Sess. Laws 698; Ch. 171,
 sec. 1, § 18-3-402(1)(a), 1975 Colo. Sess. Laws 628.

                                    3
                         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.


                                      4
  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

  2DNA is a “patterned chemical structure of genetic information”
  within the meaning of section 16-5-401(8)(a.5), C.R.S. 2015. See
  People v. Hicks, 262 P.3d 916, 918 (Colo. App. 2011).

                                      5
  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 language itself, the specific context

  in which that language is used, and the broader context of the

  statute as a whole.” Id. (citation omitted).

¶ 17   The language of the relevant portion of section 16-5-401(8)(a.5)

  — that “the offense has been reported to a law enforcement agency”

  — contains no requirement that the victim be the person who


                                     6
  reported the offense to the police. “[A] court should not read into a

  statute an exception, limitation, or qualifier that its plain language

  does not suggest, warrant, or mandate.” People v. Sorrendino, 37

  P.3d 501, 504 (Colo. App. 2001). Because the statute makes no

  reference to the manner in which the offense must be reported, or

  by whom, we will not presume that the General Assembly intended

  its application to be limited to cases in which the victim reported

  the offense.

¶ 18     Several other states that have exceptions to their statutes of

  limitations for certain sexual offenses in which the defendant is

  identified by DNA do require that the victim be the person who

  reported the offense. See Conn. Gen. Stat. § 54-193b (2015); 720

  Ill. Comp. Stat. 5/3-5 (2015); Okla. Stat. Ann. tit. 22, § 152(C)

  (2015). However, they do so by using explicit language to this

  effect, providing that there is no time limit for prosecuting certain

  sexual assaults if the defendant’s identity is obtained through DNA

  and:

        “the victim notified any police officer . . . not later than five

         years after the commission of the offense,” Conn. Gen. Stat.

         § 54-193b (emphasis added);


                                         7
        “the victim reported the offense to law enforcement authorities

         within three years after the commission of the offense,” 720 Ill.

         Comp. Stat. 5/3-5(a) (emphasis added); or

        “the victim notified law enforcement within twelve (12) years

         after the discovery of the crime,” Okla. Stat. Ann. tit. 22,

         § 152(C)(2).

¶ 19     Thus, because the General Assembly could have restricted the

  application of section 16-5-401(8)(a.5) to cases in which the victim

  reported the offense but did not do so, “we do not read [such an]

  additional restriction[] into the statute.” Springer v. City & Cty. of

  Denver, 13 P.3d 794, 804 (Colo. 2000). Rather, under the plain

  language of the statute, it applies in all cases in which a law

  enforcement agency has in some way received a report of the

  offense (and the other statutory terms are met). This condition

  indisputably was met here.

¶ 20     The police had known about the physical assault on the victim

  from their response to the initial call, and they received further

  information from the hospital about her condition, including the

  results of the sexual assault examination kit. The sexual assault




                                       8
  therefore “ha[d] been reported to a law enforcement agency . . .

  within ten years after [its] commission.” § 16-5-401(8)(a.5).

¶ 21   Accordingly, there was no statutory time limit in which to file

  charges against Shores, and the trial court correctly denied his

  motion to dismiss.

                        III. CRE 404(b) Evidence

¶ 22   Shores argues that the trial court abused its discretion in

  admitting CRE 404(b) evidence of the 2013 sexual assault in Texas.

  We disagree.

¶ 23   We review a trial court’s decision to admit other acts evidence

  under CRE 404(b) for an abuse of discretion. People v. Cisneros,

  2014 COA 49, ¶ 103. A trial court has “substantial discretion when

  deciding whether to admit evidence of other acts,” and its ruling will

  not be disturbed absent an abuse of that discretion. Yusem v.

  People, 210 P.3d 458, 463 (Colo. 2009). A court abuses its

  discretion when its ruling is manifestly arbitrary, unreasonable, or

  unfair, or when it misconstrues or misapplies the law. People v.

  Williams, 2016 COA 48, ¶ 18.




                                    9
                                 A. Facts

¶ 24   The prosecution moved pretrial to admit under CRE 404(b)

  and section 16-10-301, C.R.S. 2015, evidence relating to “[Shores’]

  aggravated sexual assault of [D.B.], a 49-year-old disabled woman

  under the care of a home health provider in . . . Texas.” The

  prosecution sought to admit the evidence “[t]o refute the defense of

  consent”; “[t]o show a common plan, scheme, or design”; and “[t]o

  show the absence of mistake or accident.” In a thorough, written

  order, the trial court granted the motion over defense counsel’s

  objection and admitted the evidence for the purposes described by

  the prosecution.

¶ 25   Before D.B. testified at trial, the court instructed the jury that

  it could consider her testimony only for the above purposes and “for

  no other purpose.”

¶ 26   D.B. testified that she was fifty years old and disabled because

  of a hip impairment. She testified that in May 2013, she was

  waiting outside a hospital in a wheelchair for a taxi when a man

  offered her a ride home, which she accepted. When asked by the

  prosecutor if this man was in the courtroom, she could not identify

  Shores.


                                    10
¶ 27     D.B. testified that the following evening, the man who had

  given her a ride came back to her apartment. She testified that

  they were together in the living room for a while, and then he went

  into her bedroom. Sometime later, she took a few sleeping pills

  (which she testified she took every night) and got ready for bed, but

  when she went into her bedroom she found the man asleep in her

  bed.

¶ 28     D.B. testified that she lay down next to the man on the bed

  and started to fall asleep; “the next thing [she] kn[e]w,” he was

  having intercourse with her. She testified that she did not consent

  to the intercourse, and it was very painful for her because of the

  pressure it put on her bad leg. She later noticed blood when she

  went to the bathroom, and she had pain in her “pelvic area.” The

  next morning, after the man had left, D.B. told her in-home

  caregiver about the blood. Her caregiver called the police, and D.B.

  went to the hospital.

¶ 29     A nurse who examined D.B. at the hospital testified that she

  noted blood in D.B’s vaginal area and also saw several injuries. The

  nurse performed a sexual assault examination kit, from which the




                                    11
  police obtained DNA evidence. A DNA analyst testified that the DNA

  evidence matched a DNA sample from Shores.

¶ 30   In closing argument, the prosecutor discussed the similarities

  between the victim and D.B., arguing that they showed that Shores

  “had a common plan, scheme or design to target vulnerable women

  with disabilities and a lot of limitations” and sexually assault them.

  The prosecutor also argued that the evidence relating to D.B.

  showed lack of consent and absence of mistake or accident: that the

  evidence made it unlikely that Shores had a consensual encounter

  with the victim but was mistakenly accused of sexual assault

  because someone else coincidentally assaulted her shortly

  afterward.

¶ 31   Before deliberations, the jury was provided with a written

  limiting instruction providing the purposes for which the evidence

  could be considered and stating that evidence admitted for a limited

  purpose could not be considered except for that purpose.

                                 B. Law

¶ 32   Relevant evidence is generally admissible at criminal trials.

  CRE 401. However, specific evidentiary rules limit the admissibility

  of certain types of evidence, relevant or not. CRE 403 excludes


                                    12
  evidence “if its probative value is substantially outweighed by the

  danger of unfair prejudice.” Evidence may also be excluded under

  CRE 404(b), which prohibits the admission of evidence of “other

  crimes, wrongs, or acts . . . to prove the character of a person in

  order to show that he acted in conformity therewith” (often

  described as propensity).

¶ 33   CRE 404(b) thus excludes other acts evidence if its only logical

  relevance “depends upon an inference that a person who has

  engaged in such misconduct has a bad character and the further

  inference that the defendant therefore engaged in the wrongful

  conduct at issue.” People v. Spoto, 795 P.2d 1314, 1318 (Colo.

  1990). But such evidence may be admissible if admitted for

  purposes independent of an inference of bad character such as to

  show “motive, opportunity, intent, preparation, plan, knowledge,

  identity, or absence of mistake or accident.” CRE 404(b); see also

  Yusem, 210 P.3d at 463.

¶ 34   In Spoto, 795 P.2d at 1318, the Colorado Supreme Court

  derived from these rules a four-part test to determine whether other

  acts evidence is admissible. To be admissible, (1) the other acts

  evidence must relate to a material fact; (2) the evidence must be


                                    13
  logically relevant; (3) the logical relevance must be independent of

  the inference prohibited by CRE 404(b) that the defendant was

  acting in conformity with his bad character; and (4) the probative

  value of the evidence must not be substantially outweighed by the

  danger of unfair prejudice caused by its admission. Id.; see also

  People v. Jones, 2013 CO 59, ¶ 15.

¶ 35   In cases involving sexual offenses, including first degree

  sexual assault under the pre-2000 version of section 18-3-402, the

  General Assembly has “specifically delineated the CRE 404(b)

  admissibility requirements for other acts evidence.” Jones, ¶ 13

  (citing § 16-10-301(1)); see also § 16-10-301(2). The General

  Assembly has declared that in cases involving sexual offenses,

  “there is a greater need and propriety for consideration by the fact

  finder of evidence of other relevant acts of the accused . . . whether

  occurring prior to or after the charged offense,” and thus “it is

  expected that normally the probative value of such evidence will

  outweigh any danger of unfair prejudice, even when incidents are

  remote from one another in time.” § 16-10-301(1).

¶ 36   Under section 16–10–301(3), the prosecution “may introduce

  evidence of other acts of the defendant to prove the commission of


                                    14
  the offense as charged for any purpose other than propensity.”

  Such purposes include:

             Refuting defenses, such as consent . . . ;
             showing a common plan, scheme, design, or
             modus operandi, regardless of whether identity
             is at issue and regardless of whether the
             charged offense has a close nexus as part of a
             unified transaction to the other act; showing
             . . . absence of mistake or accident; or for any
             other matter for which it is relevant.

  Id.

                              C. Application

¶ 37    Shores argues that because the only common factor between

  this case and D.B.’s is the DNA evidence, the evidence relating to

  D.B. served no purpose other than that prohibited under CRE

  404(b): to show that Shores sexually assaulted D.B. and thus was a

  bad person, and to infer he therefore sexually assaulted the victim.

  We reject this argument and conclude that the trial court did not

  abuse its discretion in determining that the evidence met all four

  prongs of the Spoto test.

                   1. Material Fact — Spoto Prong One

¶ 38    A material fact is a fact “that is of consequence to the

  determination of the action.” Spoto, 795 P.2d at 1318 (citation



                                     15
  omitted). Generally, CRE 404(b) evidence can be used to prove the

  actual elements of a charged offense (also called ultimate facts):

  “that the accused committed the guilty act” — his “identity” — and

  “that he did so with the required intent or state of mind and without

  legal excuse or justification.” People v. Rath, 44 P.3d 1033, 1040

  (Colo. 2002); see also Yusem, 210 P.3d at 464. CRE 404(b)

  evidence can also establish “intermediate facts, themselves

  probative of ultimate facts.” Yusem, 210 P.3d at 464. Plan,

  scheme, design, and modus operandi, for example, are “well-

  accepted methods of proving the ultimate facts necessary to

  establish the commission of a crime, without reliance upon an

  impermissible inference from bad character.” Rath, 44 P.3d at

  1040.

¶ 39   First degree sexual assault was defined under the pre-2000

  statute as the knowing infliction of sexual intrusion or sexual

  penetration on a victim where the defendant “cause[d] submission

  of the victim through the actual application of physical force or

  physical violence.” Ch. 171, sec. 1, § 18-3-402(1)(a), 1975 Colo.

  Sess. Laws 628; see also Ch. 199, sec. 1, § 18-3-402(1), 1983 Colo.

  Sess. Laws 698. The statute “equate[d] the victim’s nonconsent


                                    16
  with proof that the defendant . . . caused the victim’s submission by

  force,” and thus the conduct prohibited by the statute “by its very

  nature negate[d] the existence of the victim’s consent.” Dunton v.

  People, 898 P.2d 571, 573 (Colo. 1995).

¶ 40   Because Shores conceded that he had intercourse with the

  victim, the only issue at trial was whether Shores caused the victim

  to submit by force or violence or whether the victim consented.

  Shores’ “defense theory of consent concern[ed] the material fact of

  the actus reus of sexual assault” because the prosecution had to

  prove that the victim did not consent to having sex with Shores —

  that he caused her submission by force instead. People v. Everett,

  250 P.3d 649, 655-56 (Colo. App. 2010). The evidence relating to

  D.B. — as admitted for the purpose of refuting the defense of

  consent or showing a common plan, scheme, design, or absence of

  mistake or accident — bore on this issue. It therefore was probative

  of the ultimate fact of whether or not Shores committed the offense

  charged. See Rath, 44 P.3d at 1040; see also Everett, 250 P.3d at

  655 (“Because the defendant’s use of force or [violence] is an

  element of the crime of sexual assault, and because such conduct is

  relevant to prove that the victim did not consent, evidence of other


                                   17
  acts that is offered to prove the defendant’s actions at the time of

  the sexual encounter relates to a genuinely disputed material fact.”)

  (citation omitted).

       2. Logical Relevance Independent of Bad Character Inference —
                        Spoto Prongs Two and Three

¶ 41      Evidence of other acts is logically relevant to prove a material

  fact if “it has a tendency to make the existence of the fact more or

  less probable than it would be without the evidence.” Kaufman v.

  People, 202 P.3d 542, 552 (Colo. 2009). Evidence indicating a

  common plan may be relevant under this standard when, “because

  of the striking similarities in the acts, the evidence makes it at least

  somewhat more probable that [the] defendant was . . . implementing

  the plan in committing the crime alleged.” People v. Delgado, 890

  P.2d 141, 144 (Colo. App. 1994).

¶ 42      Here, the evidence relating to D.B. indicated that Shores

  engaged in a similar pattern of behavior — intercourse that caused

  pain and vaginal injury — with victims who shared similar

  characteristics — older women whose disabilities made them

  particularly vulnerable. Because of these similarities, the evidence

  related to D.B. makes it more probable that Shores was



                                       18
  implementing a common plan when he had intercourse with the

  victim, and the fact that he had a nonconsensual sexual encounter

  with D.B. makes it more probable that one element of this plan was

  use of force rather than consent. In this way, the relevance of the

  evidence is not that it shows Shores as the type of person who

  sexually assaults women, which would be the prohibited bad

  character inference. Rather, “[t]he inference relied on arises . . .

  from the demonstration of [Shores’] pattern of using a particular

  technique to accomplish a particular end.” Rath, 44 P.3d at 1041.

¶ 43     Accordingly, the evidence relating to D.B. was logically

  relevant independent of the bad character inference because it had

  a tendency to make it more probable that the victim did not consent

  than it would be without the evidence. See Kaufman, 202 P.3d at

  552.

                     3. CRE 403 — Spoto Prong Four

¶ 44     In assessing the probative value of the evidence, a court must

  assess the evidence’s “incremental” probative value: what weight

  the evidence adds to the prosecution’s case. Rath, 44 P.3d at 1041.

  In so doing, the court weighs “the logical force of the evidence and

  the proponent’s need for the evidence in light of other available


                                     19
  evidence.” Id. (citation omitted). The court then must balance the

  evidence’s incremental probative value against the danger of unfair

  prejudice, “afford[ing] the evidence the maximum probative value

  attributable by a reasonable fact finder and the minimum unfair

  prejudice to be reasonably expected.” Id. at 1043.

¶ 45   In assessing this prong of Spoto, the trial court concluded that

  it could not say that the probative value of the evidence relating to

  D.B. would be substantially outweighed by unfair prejudice. The

  court emphasized that the incident involving D.B. was “similar in

  important respects” to that involving the victim and “directly

  address[ed] [Shores’] defense of consent.” We conclude that the

  court acted within its discretion in making this determination.

¶ 46   Because the victim had died and no statements of hers were

  admitted (and Shores did not testify), there was no direct evidence

  regarding consent. Although the testimony regarding the victim’s

  injuries and her mental competency provided circumstantial

  evidence that she did not consent, the evidence relating to D.B.

  added substantial strength to that inference. The prosecution’s

  need for the evidence thus was great. See Rath, 44 P.3d at 1041.




                                    20
¶ 47   Shores argues that because of the remoteness in time and

  location of the incidents and their factual distinctions, the probative

  value of the evidence relating to D.B. was negligible. However,

  remoteness is only one factor a court should consider in

  determining the probative value of other acts evidence, see Adrian v.

  People, 770 P.2d 1243, 1245-46 (Colo. 1989), and the General

  Assembly has expressed a policy favoring the admission of other

  acts evidence “even when incidents are remote from one another in

  time.” § 16-10-301(1).

¶ 48   Moreover, “CRE 404(b) contains no separate requirement of

  similarity.” Rath, 44 P.3d at 1041. Although similarity may be

  necessary to give the evidence probative force if admitted for certain

  purposes, see id. at 1042, “it is not essential that the means of

  committing the other crimes replicate in all respects the manner in

  which the crime charged was committed,” People v. Garner, 806

  P.2d 366, 375 (Colo. 1991). The trial court determined that neither

  “the nearly two decades” between the two incidents nor their

  dissimilarities prohibited admission in light of their similarities and

  the evidence’s relevance to the issue of consent. This determination




                                    21
  was not manifestly arbitrary, unreasonable, or unfair. See

  Williams, ¶ 18.

¶ 49   The trial court also instructed the jury on the limited purposes

  for which it could consider the other acts evidence, thus

  “alleviat[ing] the risk that the jury would use the testimony for the

  prohibited purpose of inferring” bad character and conformity

  therewith. Spoto, 795 P.3d at 1321. The prosecutor argued only

  these limited purposes during closing argument and did not suggest

  that the jury should consider evidence relating to D.B. to infer that

  Shores was the type of person who committed sexual assault. To

  the contrary, the prosecutor explicitly told the jury that it should

  not, and was not allowed to, decide that Shores was a bad person

  for assaulting D.B. and therefore must have committed the assault

  against the victim.

¶ 50   Accordingly, the trial court did not abuse its discretion in

  determining that the probative value of the evidence relating to D.B.

  was not substantially outweighed by the danger of unfair prejudice

  caused by its admission.3


  3In his reply brief, Shores appears to raise a sufficiency of the
  evidence challenge, but he did not make a similar argument in his

                                    22
                            IV. Conclusion

¶ 51   The judgment of conviction is affirmed.

       JUDGE ROMÁN and JUDGE BERNARD concur.




  opening brief. We generally do not consider arguments raised for
  the first time in reply briefs. See People v. Montante, 2015 COA 40,
  ¶ 58 n.4.

                                   23
