Peo v. Ewing

22CA0873 Peo v Ewing 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0873
Jefferson County District Court No. 18CR3105
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee and Cross-Appellant,

v.

Alex Christopher Ewing,

Defendant-Appellant and Cross-Appellee.

JUDGMENT AND ORDER AFFIRMED AND RULING DISAPPROVED

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado; Alexis King, District Attorney, Rebecca A. Adams, Senior Deputy
District Attorney, Golden, Colorado, for Plaintiff-Appellee and Cross-Appellant

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant and Cross-Appellee
¶1 Defendant, Alex Christopher Ewing, appeals his judgment of

conviction entered on a jury verdict finding him guilty of three

counts of first degree murder and one crime of violence sentence

enhancer, contending that the district court erred by admitting

certain evidence. On cross-appeal, the People contend that the

court erred by dismissing one count of first degree felony murder

and in granting Ewing presentence confinement credit (PSCC). We

affirm Ewing’s judgment of conviction, disapprove of the court’s

dismissal of the felony murder charge, and affirm the court’s award

of PSCC.

I. Background

¶2 On January 10, 1984, the victim was found dead in her

Lakewood home by her daughter. She was nude from the chest

down, her bra had been pushed up, her legs had been spread, her

underwear had been removed and left near her body, and her face

had been partially covered by a Winnie the Pooh blanket.

Investigators determined that the victim had been sexually

assaulted and struck in the head sixteen times with both the broad

face and claw part of a hammer. The perpetrator left the hammer

next to the victim’s head under the blanket.

1
¶3 The victim’s house was next to an open space and had a

detached garage. The garage had been left open, and the front door

was unlocked. There were no signs of forced entry. The victim’s

gold coin necklace and diamond rings were missing, the contents of

her purse were strewn about her bedroom, and money was missing

from her wallet.

¶4 Investigators photographed the crime scene, collected the

blanket, and cut out portions of the carpet from underneath and

around the victim. Investigators also collected a sample of a white

substance near the victim’s vaginal area and a sample of a crusty

white substance near the victim’s anal area. In 2018, analysts from

the Colorado Bureau of Investigation (CBI) determined that the

blanket, the carpet, and the samples taken from the victim’s body

contained DNA that matched Ewing’s DNA profile.1

¶5 In August 2018, the People charged Ewing with first degree

murder after deliberation, § 18-3-102(1)(a), C.R.S. 1984; first degree

1 Ewing was incarcerated for other crimes he committed in Nevada

later in 1984. In 2018, his DNA was collected and uploaded into a
national database. Within a week, CBI analysts matched the DNA
profiles developed from the samples taken from the victim, blanket,
and carpet with Ewing’s DNA profile.

2
felony murder predicated on robbery, § 18-3-102(1)(b), C.R.S.

1984;2 first degree felony murder predicated on sexual assault, id.;

and a crime of violence sentence enhancer.3 The jury found Ewing

guilty as charged.

¶6 The district court sentenced Ewing to a controlling term of life

in the custody of the Department of Corrections. It merged the two

felony murder convictions into the murder after deliberation

conviction and ordered Ewing’s sentence to run consecutively to his

sentences for convictions in two other cases. The court later

awarded Ewing PSCC.

II. Ewing’s Evidentiary Claims

¶7 Ewing contends that the district court erred by admitting

(1) other act evidence under CRE 404(b) and (2) exhibits that he

argues were not properly authenticated. We reject these

contentions.

2 Felony murder is now classified as second degree murder. See
§ 18-3-103(1)(b), C.R.S. 2024.
3 The prosecution also charged Ewing with first degree felony

murder predicated on burglary under section 18-3-102(1)(b), C.R.S.
1984, which the district court dismissed during trial, see infra Part
III.A.2, and a second crime of violence sentence enhancer, which
was withdrawn.

3
A. Standard of Review

¶8 We review a trial court’s evidentiary rulings for an abuse of

discretion. Zapata v. People, 2018 CO 82, ¶ 25. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or if it misconstrues or misapplies the law. People v. Liggett,

2021 COA 51, ¶ 16, aff’d, 2023 CO 22.

B. Other Act Evidence

¶9 Ewing contends that the district court erred by admitting CRE

404(b) evidence that he sexually assaulted a child and murdered

her and her parents. We perceive no abuse of discretion.

1. Applicable Law

¶ 10 “Evidence of any other crime, wrong, or act is not admissible

to prove a person’s character in order to show that on a particular

occasion the person acted in conformity with the character.” CRE

404(b)(1). However, such evidence may be admitted for

non-propensity purposes, such as proving identity or showing a

common plan, scheme, design, or modus operandi. See CRE

404(b)(2); § 16-10-301(3), C.R.S. 2024; Yusem v. People, 210 P.3d

458, 463 (Colo. 2009). In the prosecution of sexual offenses, the

General Assembly has recognized “a greater need and propriety for

4
consideration by the fact finder of evidence of other relevant acts of

the accused, including any actions, crimes, wrongs, or transactions,

whether isolated acts or ongoing actions and whether occurring

prior to or after the charged offense.” § 16-10-301(1), (2).

¶ 11 Even so, the admissibility of other act evidence must be

analyzed under the four-part test set forth in People v. Spoto, 795

P.2d 1314 (Colo. 1990). Such evidence is admissible if (1) the

evidence relates to a material fact; (2) the evidence is logically

relevant; (3) the logical relevance is independent of the prohibited

intermediate inference that the defendant was acting in conformity

with his bad character; and (4) the probative value of the evidence

is not substantially outweighed by the danger of unfair prejudice.

Id. at 1318; see CRE 403. The legislature has made clear that

evidence of other sexual acts “is typically relevant and highly

probative, and 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).

5
2. Additional Background

¶ 12 Before trial, the prosecution provided written notice under

CRE 404(b) of its intent to introduce evidence of crimes Ewing

committed against a family in Aurora on January 16, 1984.4 That

day, a woman discovered her son dead in his home and called 911.

Investigators determined that the man had been struck about ten

times with a hammer and his throat had been cut. Paramedics

found the man’s wife dead in their bedroom. The wife had injuries

consistent with stabbing and had been struck on the head with a

hammer.

¶ 13 A paramedic also found the couple’s eight-year-old daughter

dead in her room.5 She had been sexually assaulted and struck on

the head with a hammer several times. The child’s pajama bottoms

had been cut off and her underwear removed, she was nude from

the waist down, and her legs had been spread apart. She had also

4 The prosecution also sought to introduce evidence that Ewing

committed a home invasion in Nevada, during which he bludgeoned
the two homeowners with an axe handle. The district court denied
this request.
5 The child’s younger sister was the sole survivor, but the

prosecution did not seek to present any evidence of the injuries to
that child.

6
been covered by a comforter. DNA samples from the blanket and

carpet underneath the child victim matched Ewing’s DNA profile.

¶ 14 The Aurora family’s house was next to an open space, the

garage had been left open, and the door that connected the garage

to the home was unlocked. There were no signs of forced entry.

Only small valuables were stolen, and the contents of the wife’s

purse were scattered outside the garage.

¶ 15 The prosecution sought to admit evidence of the Aurora crimes

to establish Ewing’s identity, modus operandi, and common plan,

scheme, or design in the murder and sexual assault of the victim in

this case.6 Ewing objected, arguing that the crimes lacked “a

compelling pattern” or “remarkable similarity.” In a separate

pretrial motion, Ewing also offered to stipulate to the manner and

cause of both sex assault victims’ deaths.

¶ 16 The district court granted the prosecution’s motion in a

detailed written order. The court determined that the crimes were

similar in the following ways:

6 Ewing was tried and convicted of three counts of first degree

murder for the Aurora crimes, and his conviction was affirmed on
appeal. See People v. Ewing, (Colo. App. No. 21CA1541, Apr. 10,
2025) (not published pursuant to C.A.R. 35(e)).

7
• Both crimes occurred in Colorado within 6
days of each other.

• The assailant entered the homes through an
open garage door.

• The victims were murdered in their own
homes[.]

• The victims in both cases were beaten
severely with injuries focused mostly to the
head.

• The assailant used a hammer to kill the
victims.

• [The victim’s] purse and [the Aurora wife’s]
purse had the contents dumped on the
floor.

• [The victim] and [the child victim] were both
sexually assaulted.

• Both sexual assault victims were naked
from the waist down with clothing pulled up
and covering the top of their [bodies].

• Both sexual assault victims were left with
their legs spread apart, covered with a
blanket[,] and were found with a pair of
underwear near their foot.

• Semen was collected from both sexual
assault victims which yielded a DNA profile
that was the same[.]

¶ 17 Based on these similarities, the court concluded that the

crimes were “connected in point of time and are so similar that they

8
can be identified as a common plan.” The court also concluded that

the distinctive characteristics — “such as bludgeoning the head

with a hammer, sexual assault with [the] bottom half of the victim

naked and the upper portion covered with clothing, and covering

the victim with a blanket” — established a modus operandi. Thus,

the court found that the Aurora evidence was relevant to the

material fact of identity independent of the inference that Ewing

acted in conformity with his bad character.

¶ 18 The court also conducted a CRE 403 balancing test. Although

the court recognized the egregious nature of the Aurora evidence, it

noted that the only evidence linking Ewing to the charged crime was

thirty-six-year-old DNA that “will undoubtedly be contested at trial”

and that the probative value of the Aurora evidence was strong

enough to outweigh its potential prejudicial effect.

3. The District Court Did Not Err by Admitting Evidence of the
Aurora Sexual Assault and Murders

a. The Evidence Relates to a Material Fact

¶ 19 Ewing does not contest the district court’s conclusion that the

first Spoto prong was satisfied because the Aurora evidence related

9
to the material fact of whether Ewing was the assailant in the

underlying case.

b. The Evidence Was Logically Relevant Independent of a Bad
Character Inference

¶ 20 The second Spoto prong requires the party seeking to admit

the evidence to show its logical relevance. Spoto, 795 P.2d at 1318.

Evidence is logically relevant if it has any tendency to make the

existence of a material fact more or less probable than without the

evidence. Yusem, 210 P.3d at 464; CRE 401.

¶ 21 Relatedly, the third Spoto prong requires that the “logically

relevant evidence achieve its relevance in some way other than

through the impermissible inference that a person who engages in a

bad act does so because he acts in conformity with his bad

character.” People v. Jones, 2013 CO 59, ¶ 16. “While this third

prong does not demand the absence of the impermissible character

inference, it ‘requires that the proffered evidence be logically

relevant independent of that inference.’” Id. (quoting People v.

Snyder, 874 P.2d 1076, 1080 (Colo. 1994)); see Spoto, 795 P.2d at

1318; CRE 404(b).

10
¶ 22 Ewing contends that evidence of the Aurora sexual assault

and murders did not demonstrate either modus operandi or a

common plan, scheme, and design because the crimes were too

dissimilar and disconnected. Consequently, he argues, the logical

relevance of the Aurora evidence to his identification as the

perpetrator in the underlying case depended entirely on the

impermissible inference that he has a bad character. We perceive

no abuse of discretion in the district court’s decision to admit the

Aurora evidence as modus operandi evidence.7 And because the

evidence was admissible as modus operandi, its relevance was

independent of the impermissible character inference. See People v.

Delgado, 890 P.2d 141, 144 (Colo. App. 1994).

7 We could also affirm on the ground that Ewing had a common

plan to enter homes through open garage doors, physically assault
the inhabitants with a hammer, and sexually assault a female
victim, leaving her partially clothed and partially covered by a
blanket. See People v. Jones, 2013 CO 59, ¶¶ 24-27 (The trial court
properly admitted evidence of alleged sexual assaults against two
other women because it showed defendant’s common plan “to have
sexual relations with white women who had been drinking without
their consent late at night while holding their mouths closed.”);
People v. Shores, 2016 COA 129, ¶ 42 (evidence that the defendant
engaged in intercourse that caused pain and vaginal injury to older
women whose disabilities made them vulnerable constituted a
common plan).

11
¶ 23 Modus operandi evidence is typically used to establish the

identity of a perpetrator by demonstrating that the “circumstances

attending the commission of the uncharged and charged misdeeds

are so distinctive as to establish that only one person — the

accused — perpetrated the charged misdeed.” People v. Williams,

2016 COA 48, ¶ 27 (citation omitted), aff’d, 2020 CO 78. “[T]he

methods used in the commission of the acts being compared must

be both similar to each other and dissimilar from the methods

generally used in such an offense.” Delgado, 890 P.2d at 144.

¶ 24 Here, the Aurora evidence and the underlying case shared

sufficiently distinctive similarities for the Aurora evidence to

constitute modus operandi evidence: (1) the crimes occurred six

days apart in adjacent counties at homes abutting open spaces;

(2) at each home, the garage door was found open and there were

no signs of forced entry; (3) the perpetrator hit each victim in the

head repeatedly with a hammer; (4) the perpetrator only took small

valuables and dumped out the contents of the women’s purses;

(5) in each case, the perpetrator sexually assaulted one female

victim and left the victims in nearly identical positions — nude from

the waist down, lying on their backs with their legs spread apart,

12
partially covered by a blanket, with their underwear removed and

found near their bodies; and (6) the DNA found in the semen left at

each crime scene matched Ewing’s DNA profile. See People v. Rath,

44 P.3d 1033, 1042-43 (Colo. 2002) (the court did not err by

admitting modus operandi evidence of four other acts during which

the defendant offered his victims a ride or threatened them to get

into his car, drove them to a secluded location, and sexually

assaulted or attempted to sexually assault them); People v.

McKibben, 862 P.2d 991, 993-94 (Colo. App. 1993) (the court did

not err by admitting modus operandi evidence that the defendant

befriended boys, treated them to movies and meals, gave them jobs,

took them to his apartment, discussed sexual acts, and then asked

the boys for sex); People v. Ridenour, 878 P.2d 23, 25, 27-28 (Colo.

App. 1994) (other act evidence supported a modus operandi theory

when the two crimes involved a robber in a theater who told

everyone to lie on the ground, had an earpiece with a wire running

under his shirt, and instructed the victims not to call the police for

five minutes); People v. Madonna, 651 P.2d 378, 386 (Colo. 1982)

(the court properly admitted evidence of the defendant’s other crime

to prove modus operandi when both involved “a bogus telephone

13
call” to a pharmacist, a forged prescription, and a request that a

stranger pick up the prescription).

¶ 25 We are not persuaded otherwise by Ewing’s contention that

the two crimes did not have the “compelling pattern” or “remarkable

similarity” required of modus operandi evidence. We recognize that

there were differences in the crimes — for example, the ages of the

sex assault victims differed and, in the Aurora crime, Ewing

murdered three people and used a knife in addition to a hammer —

but “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). Instead, when the evidence of the two crimes is

considered in its totality, it “manifest[s] significantly distinctive

features to make it more likely than it would be without the

other-crime evidence that the person who committed the other

crimes also committed the offense charged.” Id.; see also Rath, 44

P.3d at 1042-43 (“Although there were obvious differences in the

circumstances surrounding each transaction . . . , they shared a

number of significant characteristics that evidenced a pattern of

behavior rather than isolated prior incidents.”).

14
¶ 26 Nor are we persuaded by Ewing’s argument that the

methodology used to perpetrate the attacks was not sufficiently

distinct from methods generally employed in home invasion

burglaries, sexual assaults, and murders. Although, at a certain

level of abstraction, one could say that the methods Ewing used are

similar to methods typically used in committing such crimes — for

instance, many perpetrators of sexual assaults resulting in murder

leave their deceased victims partially clothed, and many

perpetrators of home invasion murders bludgeon their victims to

death — we decline to view the evidence so superficially. Instead,

the commonalities between the two crimes are collectively dissimilar

enough from traditional methods of committing such offenses that

the Aurora evidence was admissible as modus operandi evidence to

prove identity. See Rath, 44 P.3d at 1042-43; Delgado, 890 P.2d at

144.

¶ 27 “While the difference is subtle,” because the evidence was

admissible as modus operandi, its relevance “does not rest on the

prohibited inference that [Ewing] committed the crime charged

because he was acting in accordance with a generally bad

character.” Delgado, 890 P.2d at 143-44. Rather, it is Ewing’s

15
“tendency to commit an act in a particular way that is relevant, not

[his] general character.” Id. at 144. And although the Aurora

evidence certainly implies that Ewing has a bad character, that

implication “does not preclude the evidence so long as it is offered

for a permissible purpose.” People v. Thompson, 2018 COA 83,

¶ 60, aff’d, 2020 CO 72; see also Jones, ¶ 16. We see no abuse of

discretion in the district court’s determination that the second and

third prongs of the Spoto test were satisfied. Yusem, 210 P.3d at

464; Jones, ¶ 16.

c. The Probative Value of the Aurora Evidence Was Not
Substantially Outweighed by the Danger of Unfair Prejudice

¶ 28 The fourth Spoto prong asks whether “the probative value of

the evidence is substantially outweighed by the danger of unfair

prejudice.” Spoto, 795 P.2d at 1318; see CRE 403. “[U]nfair

prejudice within the meaning of [CRE 403] still refers only to ‘an

undue tendency on the part of the admissible evidence to suggest a

decision made on an improper basis’ and does not mean prejudice

that results from the legitimate probative force of the evidence.”

Rath, 44 P.3d at 1043 (citation omitted). To conduct the balancing

required by CRE 403, we consider factors such as the importance of

16
the material fact for which the evidence is offered and whether it is

disputed, the chain of inferences necessary to establish the material

fact, the availability of other proof, and the effectiveness of a

limiting instruction. Yusem, 210 P.3d at 467-69; see also Rath, 44

P.3d at 1041. In deference to a trial court’s decision to admit the

evidence, we assume its maximum probative value and its

minimum unfair prejudice. Yusem, 210 P.3d at 467.

¶ 29 Whether Ewing was the perpetrator of the victim’s sexual

assault and murder was a critical and contested material fact. In

admitting the Aurora evidence, the district court reasoned that the

only evidence linking Ewing to the underlying crimes was DNA

evidence that was “over 36 years old,” would “undoubtedly be

contested at trial,” and was “open to argument about contamination

or poor storage of the specimen.” Under such circumstances, the

court determined that the probative value of the Aurora evidence

was high and was not substantially outweighed by the danger of

unfair prejudice.

¶ 30 Ewing contends that the district court erred by determining

that the Aurora evidence satisfied the fourth Spoto prong because

(1) the DNA evidence “was an efficient means for the prosecution to

17
prove identity, without also casting the damning innuendo of

prejudice into the minds of jurors by injecting the highly

inflammatory [Aurora] evidence”; (2) the Aurora crime was more

egregious than the charged conduct; and (3) the Aurora evidence

was extensive and cumulative and went beyond proving Ewing’s

identity. For three reasons, we perceive no abuse of discretion in

how the court balanced the probative value and prejudicial effect of

this evidence.

¶ 31 First, we agree with the court’s assessment of the value of the

Aurora evidence considering the potential problems with the age,

preservation, and testing of the DNA evidence. Defense counsel

extensively attacked the DNA evidence at trial, including on the

grounds that it had not been properly stored, transmitted, or tested.

Indeed, Ewing raises many of those same points on appeal when he

argues that the DNA evidence was improperly authenticated. See

infra Part II.C.3. Under these circumstances, the Aurora evidence

was extremely probative and increased the likelihood that Ewing

committed the charged crime. See Rath, 44 P.3d at 1041 (“Unlike

Rule 401’s ‘relevance,’ Rule 403’s ‘probative value’ is not considered

in isolation but signifies the ‘marginal’ or ‘incremental’ probative

18
value of evidence relative to the other evidence in the case,” so “the

court must weigh ‘the logical force of the evidence and the

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

evidence.”) (citations omitted). And although Ewing was willing to

stipulate to the manner of both sex assault victims’ deaths, the

prosecution was still entitled to prove the elements of its case

through “evidence of its own choice.” People v. Morales, 2012 COA

2, ¶ 9. In other words, Ewing cannot “stipulate or admit his way

out of the full evidentiary force of the case as the [prosecution]

chooses to present it.” Id. (alteration in original) (quoting Old Chief

v. United States, 519 U.S. 172, 186-87 (1997)).

¶ 32 Second, we reject Ewing’s argument that the risk of unfair

prejudice stemming from the Aurora evidence necessarily

outweighed its probative value because it was “significantly more

egregious” than the charged crime and thus “likely to inflame the

passions of the jury.” Ewing relies on People v. Brown, 2014 COA

130M, ¶ 22, to support his argument. But in that case, the charged

conduct involved the defendant videotaping the victim housesitting

for him without consent, while the other act evidence “portrayed

[the] defendant as a would-be rapist.” Id. Because the charged

19
crime did not involve any physical contact, the division concluded

that the other act evidence was “qualitatively different, more severe,

and more inflammatory than the evidence concerning the charged

offenses,” which made it more likely that the jury would render a

decision on an improper basis. Id. at ¶¶ 22-23. Significantly,

however, the division in Brown did “not establish[] a categorical rule

that a trial court should never admit evidence of other acts that

involve conduct that is more serious than the charged offense.” Id.

at ¶ 25.

¶ 33 We acknowledge that the Aurora evidence was extensive and

gruesome, and that it involved the rape and murder of a child. We

also acknowledge that jurors might be shocked or upset by the

evidence. But unlike the other act evidence admitted in Brown, the

Aurora evidence was qualitatively similar to the evidence of the

charged conduct — both sets of evidence concerned violent sexual

assaults and murders. In this way, the prejudice resulting from the

admission of the evidence was not unfair — that is, the evidence did

not have “an undue tendency . . . to suggest a decision made on an

improper basis” — but simply resulted “from the legitimate

probative force of the evidence.” Rath, 44 P.3d at 1043 (citation

20
omitted). And the potential for unfair prejudice was mitigated by

the court’s contemporaneous instructions and its final charge to the

jury limiting the jury’s consideration of the other act evidence to the

purpose for which it was admitted. People v. Kembel, 2023 CO 5,

¶ 50 (Contemporaneous instructions to the jury about the limited

purpose of other act evidence “suffices to safeguard against the

potential for the jury to draw an inference of propensity or to

otherwise misuse that evidence.”); People v. McKeel, 246 P.3d 638,

641 (Colo. 2010) (“We presume that jurors follow the instructions

that they receive.”).

¶ 34 Third, although substantial evidence regarding the Aurora

crime was admitted, we conclude that it was not so extensive that it

“caus[ed] the ‘side show’ to take over the trial,” as Ewing argues.

Ewing claims that the Aurora evidence “was almost equivalent to”

the evidence presented of the underlying crime but does not give us

a way to compare relative volume. And on the record before us, we

are not persuaded that the sheer amount of admitted Aurora

evidence tips the CRE 403 balance toward reversal.

¶ 35 Ewing also specifically challenges the testimony of the woman

who found her son dead, a paramedic who responded to the scene,

21
and a retired detective, as well as the photos of the Aurora crime

scene, arguing that this evidence “went beyond establishing Ewing’s

identity.” But through the challenged witnesses, the prosecution

established commonalities between the Aurora crime and the

charged crime that were necessary for the Aurora evidence to show

modus operandi. See Delgado, 890 P.2d at 143-44. For example,

the woman who found her son dead testified that the family’s

garage was open and their door unlocked, which is how the victim’s

home was found. The paramedic testified that the child victim’s

body had been covered by a blanket when he first arrived on the

scene, which is similar to how the victim was found. And the

retired detective testified that the Aurora family’s home was next to

an open space, which is like the victim’s home.

¶ 36 That these witnesses testified to other details and background

information or became emotional during their testimony does not

persuade us that the district court erred by admitting the evidence.

The witnesses’ testimony was relatively short. See People v.

Underwood, 53 P.3d 765, 771 (Colo. App. 2002) (the probative value

of other act evidence was not substantially outweighed by the

danger of unfair prejudice in part because the evidence was

22
relatively brief). And defense counsel did not object on the basis

that the testimony exceeded the scope of admissible CRE 404(b)

evidence. See People v. Howard-Walker, 2017 COA 81M, ¶ 124

(trial counsel’s failure to object was one indication that counsel did

not consider the testimony challenged on appeal to be seriously

prejudicial), rev’d on other grounds, 2019 CO 69.

¶ 37 As to the photos, they depicted the similarities between the

crimes, including the victims’ similar blunt-force injuries and the

sex assault victims’ similar body positions. The prosecution did not

linger unnecessarily on the photos and redacted any sensitive

photos used during its closing argument. And the court mitigated

the prejudicial impact of the photos by limiting witness testimony

about them and by not allowing the prosecution to publish photos

that had already been admitted and were particularly gruesome.

¶ 38 Highly probative evidence “always carries a potential of unfair

prejudice,” but the district court had the discretion to determine

whether the probative value was substantially outweighed by that

risk. People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009).

Affording the Aurora evidence its maximum probative value and

23
minimum unfair prejudice, we conclude that the court did not

abuse that discretion. See Yusem, 210 P.3d at 467.

C. Authenticity of Exhibits

¶ 39 Ewing contends that the district court erred by admitting the

following physical exhibits and the results of the DNA tests

performed on them: (1) the blankets that were on top of the sex

assault victims and (2) carpet cuttings from underneath the sex

assault victims.8 Ewing contends that the prosecution failed to

authenticate the exhibits. We conclude that the court did not

abuse its discretion by admitting the exhibits or the associated DNA

test results.9

1. Applicable Law

¶ 40 Authenticity is a threshold requirement for admissibility.

People v. N.T.B., 2019 COA 150, ¶ 16; see also CRE 901. This

requirement is met by “evidence sufficient to support a finding that

8 Ewing also appears to challenge the admission of photographs of

the blankets and the carpet cuttings but fails to develop the
argument, so we decline to address it further. See People v.
Rodriguez-Morelos, 2022 COA 107M, ¶ 49, aff’d, 2025 CO 2.
9 The People dispute whether Ewing preserved this challenge.

Because we conclude that the district court did not abuse its
discretion in admitting the evidence, we need not resolve this
dispute.

24
the matter in question is what its proponent claims.” CRE 901(a).

“The burden to authenticate ‘is not high — only a prima facie

showing is required.’” Gonzales v. People, 2020 CO 71, ¶ 27

(quoting People v. Glover, 2015 COA 16, ¶ 13). The trial court must

assess “whether the proponent has offered a satisfactory foundation

from which the jury could reasonably find that the evidence is

authentic.” Glover, ¶ 13 (quoting United States v. Hassan, 742 F.3d

104, 133 (4th Cir. 2014)).

¶ 41 Trial courts have broad discretion “to consider a variety of

foundational circumstances depending on the nature of the

proffered evidence.” Gonzales, ¶ 30. “When the proffered evidence

is ‘unique, readily identifiable and relatively resistant to change,’ a

witness can authenticate it by identifying the evidence as the item

in question.” People v. Rodriguez, 2022 COA 11, ¶ 16 (quoting

United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989));

see also CRE 901(b).

¶ 42 When evidence is not “readily identifiable and is susceptible to

alteration by tampering or contamination, the proponent of the

evidence must authenticate it by establishing a chain of custody.”

Rodriguez, ¶ 21. Evidence is admissible even when there is some

25
confusion about the chain of custody “so long as the evidence was

accounted for at all times.” People v. Atencio, 565 P.2d 921, 923

(Colo. 1977). “Whether there is a complete chain of custody of

evidence is a question to be determined by the court before it

admits the evidence.” Id. at 924. Once evidence is deemed

admissible, “any weakness in the chain of custody is a question of

weight for the jury.” Id.

2. Physical Exhibits

¶ 43 The prosecution introduced the Winnie the Pooh blanket that

was found partially covering the victim through crime scene

investigator Gary Klepper. Klepper testified that he photographed

and collected the Winnie the Pooh blanket from the crime scene and

took it to the Lakewood Police Department. He said he recognized

the blanket based on its Winnie the Pooh pattern, the bloodstains,

the markings he placed on it, and his initials on the bag in which it

was stored.

¶ 44 The prosecution also introduced the carpet cuttings taken

from beneath and around the victim through Klepper. Klepper

testified that he collected the carpet from the crime scene and took

it to the Lakewood Police Department. He said that he recognized

26
the carpet based on the markings he drew around the evidence and

his initials.

¶ 45 The prosecution introduced the comforter that was found

partially covering the child victim through Marvin Brandt, one of

the original homicide detectives investigating the Aurora crime.

Based on an evidence log, Brandt testified that crime scene

investigators took the comforter into evidence at the Aurora Police

Department between January 16 and February 17, 1984. He also

testified that he recognized the comforter by its color, floral pattern,

and bloodstains.

¶ 46 The prosecution introduced the carpet collected from

underneath the child victim through a retired CBI forensic

serologist, Jeanne Kilmer. Kilmer testified that she collected the

carpet from the crime scene and recognized it because it had her

initials on it. Kilmer testified that she took the carpet to the lab for

testing and returned it to the Aurora Police Department in February

1984.

¶ 47 Ewing contends that the district court erred by admitting the

physical exhibits because the prosecution failed to establish that

the exhibits were the same items collected from the crime scenes or

27
were in the same condition as when they were collected. We are not

persuaded. The physical exhibits were “unique, readily identifiable

and relatively resistant to change,” and the witnesses identified the

items based on their personal knowledge and recollection of details

regarding their appearance. Rodriguez, ¶ 16 (quoting Cardenas,

864 F.2d at 1531). The witnesses observed and collected the items

from the crime scenes, or explained who had done so and when,

and testified to their unique characteristics. Thus, we conclude

that the prosecution made prima facie showings sufficient to

authenticate the blankets and the carpet cuttings. See Gonzales,

¶ 27.

3. DNA Evidence

¶ 48 Given that the physical exhibits alone did not connect Ewing

to the crimes, the thrust of Ewing’s argument seems to be that the

results of the DNA tests conducted on the physical exhibits should

not have been admitted, although he does not articulate that

argument very clearly. As best we can tell, he contends that the

district court erred by admitting the DNA test results because the

prosecution failed to establish a complete chain of custody.

28
¶ 49 CBI analysts Kilmer and Missy Woods10 testified regarding how

evidence generally comes into the possession of CBI. They

explained that local and state law enforcement agencies deliver

items of physical evidence to the CBI forensic laboratory for testing.

Such items are assigned a CBI-specific case number and item

number, and they are stored in a CBI vault until an analyst

conducts tests on them. For cuttings taken from a large piece of

evidence containing potential DNA, analysts place each cutting into

an envelope, which is then inserted into a plastic bag and kept

frozen. After completing their examination, analysts seal and

return the evidence to the submitting agency. The lab maintains a

log for each item to show who submitted it, when an analyst

received it, and to whom it was returned.

¶ 50 Without detailing each witness’ testimony about every link in

the chain, we are satisfied that the record supports the district

court’s determination that an adequate chain of custody was

established to authenticate the DNA test results. The law

10 Ewing notes that Missy Woods is being investigated for anomalies

in her testing. Ewing’s motion for limited remand related to this
issue was denied, so the issue is not before us in this appeal.

29
enforcement witnesses testified about their participation in

collecting and sending the evidence to CBI. The CBI analysts

testified that the typical procedures outlined above were followed,

that the evidence was tested at the request of a submitting agency,

and that they obtained the evidence from and returned the evidence

to the lab’s evidence room. And the exhibits the prosecution

introduced included photos of evidence logs, property tags,

envelopes, and bags reflecting the dates the evidence was

transmitted and examined. We recognize that there were some

ambiguities in the witnesses’ testimony regarding the chain of

custody of the physical evidence, but such ambiguities went to the

weight of the evidence rather than to its admissibility. See Atencio,

565 P.2d at 924.

¶ 51 Ewing also argues that the exhibits were not properly

maintained because the evidence was “reopened, examined, tested,

and repackaged multiple times,” which compromised or

contaminated any DNA results. But the detectives who examined

the evidence testified that they used a sanitized room and wore

masks and gloves while handling the items. The analysts also

testified that they followed proper procedures during their

30
examinations, that the exhibits did not appear to have been

tampered with, and that the evidence from the two cases was never

examined at the same time. Speculation that evidence has been

tampered with is not enough to establish a break in the chain of

custody. People v. Valencia, 257 P.3d 1203, 1206 (Colo. App. 2011)

(“[A]bsent any evidence of tampering or lack of authentication, the

proponent of the evidence is not required to call each witness who

may have handled the item.”).

¶ 52 Ewing also argues that the Aurora evidence was contaminated

by law enforcement officers vacuuming the carpet and parading a

cadet group through the house before the carpet was collected. But

he does not suggest that such disturbances prevented law

enforcement from collecting the physical evidence or somehow

placed his DNA at the Aurora crime scene, so we fail to see how this

argument impacts the chain of custody or calls into question the

DNA test results. In any event, defense counsel thoroughly

explored these issues during trial and argued to the jury that it

should discount the prosecution’s evidence as a result. See

Gonzales, ¶ 42 (“[T]he requisite showing under CRE 901(a),

31
combined with rigorous cross-examination, sufficiently assures

accuracy to submit the question of authenticity to the jury.”).

¶ 53 In the end, we conclude that the district court did not abuse

its discretion by determining that the prosecution made a prima

facie showing that the DNA test results were what they purported to

be. See id. at ¶ 30; Liggett, ¶ 16.

III. The People’s Cross-Appeal Arguments

¶ 54 The People contend that the district court erred by

(1) dismissing a charge of first degree felony murder predicated on

burglary and (2) granting Ewing PSCC. We agree with the first

contention but disagree with the second.

A. Sufficiency of the Information

¶ 55 We disapprove of the district court’s ruling dismissing the

charge of felony murder predicated on burglary on the ground that

the information did not provide Ewing adequate notice.

1. Standard of Review and Applicable Law

¶ 56 In a criminal case, the trial court’s jurisdiction is invoked by

filing a legally sufficient complaint, information, or indictment.

People v. Sims, 2019 COA 66, ¶ 15. An information provides a

defendant with notice of the charged offense and the factual

32
circumstances surrounding it so that the defendant can prepare an

adequate defense. People v. Williams, 984 P.2d 56, 60 (Colo. 1999).

It also protects the defendant from further prosecution for the same

offense. Id.

¶ 57 “We review the sufficiency of a charge in an information de

novo.” People v. Perez-Hernandez, 2013 COA 160, ¶ 30. If the

information identifies the essential elements of the crime charged, it

is substantively sufficient. People v. Melillo, 25 P.3d 769, 778 (Colo.

2001). A failure to specify an underlying offense — what Ewing

alleges occurred here — is a defect in form, not substance. See

Williams, 984 P.2d at 61-62 (explaining that subsequent statutory

amendments altered the pleading specificity required by prior case

law); People v. Auman, 67 P.3d 741, 750 (Colo. App. 2002), rev’d on

other grounds, 109 P.3d 647 (Colo. 2005).

¶ 58 Although objections to the form of an information are waived if

not made before trial, Williams, 984 P.2d at 64, such “a defect . . .

may render a conviction void if the defect substantially prejudices

rights of the defendant,” Auman, 67 P.3d at 751. To determine

whether the defendant was prejudiced, we consider the surrounding

33
circumstances, including the context of the other counts.

Esquivel-Castillo v. People, 2016 CO 7, ¶¶ 17-18.

2. Additional Background

¶ 59 In count 3 of the information, the prosecution charged Ewing

with first degree felony murder predicated on burglary:

On or about January 10, 1984, Alex
Christopher Ewing unlawfully and feloniously,
acting alone or with one or more persons,
committed or attempted to commit burglary
and, in the course of or in furtherance of that
crime, or in the immediate flight therefrom,
the death of [the victim], a person, other than
one of the participants, was caused by anyone;
in violation of section 18-3-102(1)(b), C.R.S.

¶ 60 At the jury instruction conference, the prosecution asked the

court to instruct the jury that the crime underlying the burglary

predicate was theft or sexual assault. In response, Ewing moved to

dismiss count 3 because it failed to put him on notice of the

underlying crimes or the intended victim, which he argued divested

the district court of jurisdiction.11 The court dismissed count 3,

reasoning that Ewing could not determine “the basis of the burglary

11 The prosecution did not charge Ewing with burglary because that

charge was barred by the statute of limitations.

34
charge . . . just [by] looking at . . . the charge, the facts, [and] the

police report.”

3. Analysis

¶ 61 The People contend that the district court erred by dismissing

count 3 because the prosecution was not required to specify the

offenses underlying the burglary predicate and Ewing was not

prejudiced by any lack of particularity. Even if we assume that the

information was deficient in form, we perceive no prejudice to Ewing

that would have justified dismissing count 3. See Auman, 67 P.3d

at 750; Esquivel-Castillo, ¶¶ 17-18.

¶ 62 To obtain a conviction on count 3, the prosecution had to

prove that Ewing knowingly entered or remained unlawfully in a

building or occupied structure with the intent to commit a crime

other than trespass — in this case, theft or sexual assault —

against a person. See § 18-4-202(1), C.R.S. 1984. The underlying

case had only one victim, and the charged conduct occurred on a

single day and involved entry into a single residence. Ewing had

ample notice of the victim, the date, and the building he was alleged

to have burgled.

35
¶ 63 Even so, the district court determined that Ewing lacked

notice that he could be convicted of burglary based on theft or

sexual assault. But the prosecution charged Ewing with felony

murder predicated on sexual assault. So Ewing undoubtedly had

notice that he was alleged to have sexually assaulted the victim.

See Williams, 984 P.2d at 60 (an information is sufficient when it

provides defendant notice of the factual circumstances surrounding

the offense so that he can adequately defend himself). And the

prosecution separately charged Ewing with felony murder

predicated on robbery. So Ewing had notice that he was alleged to

have knowingly taken a thing of value from the victim “by the use of

force, threats, or intimidation.” § 18-4-301(1), C.R.S. 1984.

Although theft requires knowingly obtaining or exercising control

over a thing of value “without authorization, or by threat or

deception,” § 18-4-401(1), C.R.S. 1984, rather than “by the use of

force, threats, or intimidation,” § 18-4-301(1), C.R.S. 1984, Ewing

had sufficient notice of the relevant allegations by virtue of the

felony murder (robbery) charge. See Williams, 984 P.2d at 60.

¶ 64 Based on the other charges and the circumstances of the case,

Ewing had sufficient notice of the crimes of theft and sexual assault

36
underlying the charge of felony murder predicated on burglary.

Because Ewing would have suffered no prejudice from the alleged

defect in the form of the information, we disapprove of the court’s

dismissal of count 3. See People v. Moore, 226 P.3d 1076, 1092

(Colo. App. 2009) (because jeopardy attached, we can only approve

or disapprove of the court’s ruling); see also § 16-12-102(1), C.R.S.

2024 (authorizing the prosecution to appeal a question of law).

B. Presentence Confinement Credit (PSCC)

¶ 65 The People contend that the district court erred by awarding

Ewing PSCC from the date the arrest warrant for this case was

issued until he was sentenced. We are not persuaded.

1. Standard of Review

¶ 66 We review de novo whether a trial court properly awarded

PSCC. Fransua v. People, 2019 CO 96, ¶ 11. We also interpret

statutes de novo. People v. Padilla-Lopez, 2012 CO 49, ¶ 7.

2. Applicable Law

¶ 67 Under section 18-1.3-405, C.R.S. 2024, any person “confined

for an offense prior to the imposition of sentence for said offense is

entitled to credit against the term of [their] sentence for the entire

period of such confinement.” A defendant is only entitled to such

37
credit when “the presentence confinement [was] actually caused by

the charge or conduct for which the defendant is to be sentenced.”

Russell v. People, 2020 CO 37, ¶ 22 (citation omitted).

¶ 68 In this context, we apply the “substantial nexus test” to assess

causation. Id. at ¶ 24. “[A] substantial nexus exists where the

defendant would have remained confined on the charge or conduct

for which credit is sought in the absence of any other charge.” Id.

It does not require that the charge or conduct for which the

sentence is to be imposed is the exclusive cause of confinement. Id.

at ¶ 22. “Put another way, the court should ask ‘what would

happen if only the sentencing charge existed; in such a scenario,

would the defendant have remained confined?’” Id. at ¶ 24 (citation

omitted). If the answer is yes, a “defendant is entitled to PSCC so

long as the credit would not be duplicative.” Id.

¶ 69 A defendant may be confined on charges from multiple

jurisdictions but can only be physically confined in one jurisdiction

at a time. Id. at ¶ 25. In such a scenario, the confinement “may be

caused by the charges in both jurisdictions,” such that the

defendant may be entitled to nonduplicative PSCC. Id.

38
¶ 70 Section 18-1.3-405 provides that “[i]f a defendant is serving a

sentence or is on parole for a previous offense when he . . . commits

a new offense and he . . . continues to serve the sentence for the

previous offense while charges on the new offense are pending,”

then the defendant is only entitled to a credit against his original

sentence. See also Russell, ¶¶ 26-27.

3. Additional Background

¶ 71 On February 28, 1985, a Nevada jury convicted Ewing of two

counts of attempted murder with the use of a deadly weapon and

burglary for attacking a couple in their home. The Nevada court

sentenced Ewing to seventy years.

¶ 72 In 2018, while he was serving his sentence in Nevada, Ewing’s

DNA was collected and uploaded to a national database. It matched

the DNA profiles on the blanket, the carpet, and the samples taken

from the victim’s body. As a result, a warrant for Ewing’s arrest in

this case was issued on August 9, 2018.

4. Analysis

¶ 73 The People contend that the district court erred by awarding

Ewing PSCC of 1,342 days — the number of days between August

9, 2018, the date the arrest warrant was issued, and April 12,

39
2022, the date he was sentenced — because the credit was

duplicative of credit he was already receiving against his Nevada

sentence.12 For two reasons, we are not persuaded.

¶ 74 First, from the date the warrant was issued forward, Ewing

would have been confined on the charges in this case regardless of

whether he was also confined on other charges in another

jurisdiction. Thus, a substantial nexus exists between the charges

in this case and Ewing’s presentence confinement. See Russell,

¶ 24.

¶ 75 Second, section 18-1.3-405 provides that if the defendant

commits a new crime while serving a sentence for a previous

offense, PSCC is to be credited against the sentence the defendant

continues to serve for the previous offense, rather than against the

sentence on the new offense. Russell, ¶ 26. But Ewing committed

the underlying crime before he was sentenced in Nevada, not while

he was serving that sentence, so the circumstances described in the

statute do not apply. See § 18-1.3-405. The supreme court has

cautioned that, “[i]n circumstances not covered explicitly by the

12 The People do not argue that the PSCC awarded in this case

duplicates any PSCC awarded in the Aurora case.

40
statute, courts should take care when sentencing to give the

defendant a day of credit . . . for each day he was confined prior to

sentencing.” Russell, ¶ 26.

¶ 76 Accordingly, we perceive no error by the district court in

awarding Ewing PSCC. See id. at ¶¶ 22-27; § 18-1.3-405.

IV. Disposition

¶ 77 We affirm the judgment of conviction, disapprove of the district

court’s dismissal of the felony murder (burglary) charge, and affirm

the court’s award of PSCC.

JUDGE J. JONES and JUDGE YUN concur.

41