Peo v. Scott

24CA2015 Peo v Scott 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2015
Boulder County District Court No. 23CR1091
Honorable Dea M. Lindsey, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Shawn Scott,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE GOMEZ
Grove and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 28, 2026

Philip J. Weiser, Attorney General, Alexandra Taylor, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Defendant-
Appellant
¶1 Defendant, Michael Shawn Scott, appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

assault on a child less than fifteen years old by one in a position of

trust as a part of a pattern of abuse. He contends that the trial

court erroneously denied his motion to admit evidence as relevant

under Colorado’s rape shield statute, section 18-3-407, C.R.S.

2025. We disagree and, therefore, affirm.

I. Background

¶2 In 2022, seventeen-year-old A.N. told her older sister, G.N.,

that she was starting to remember being inappropriately touched by

Scott, a family friend, when she was a young child. According to

A.N., physical intimacy with her new boyfriend had triggered these

memories. G.N. told their parents, who spoke with A.N. about her

disclosures. Later, A.N. and her parents had a general conversation

with A.N.’s younger sister, E.N., about A.N.’s memories. E.N. then

said she remembered having “uncomfortable” experiences with

Scott as a young girl. The family later filed a report with the police.

¶3 A.N. and E.N. separately participated in forensic interviews,

during which they recollected their experiences with Scott.

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¶4 During a follow-up interview with a detective, A.N. wrote the

following statement:

My boyfriend and I heard a term I have/had
never heard before and I asked him what it
meant. I knew about regular sex but didn’t
know that there was a thing called “anal sex.”
When I learned what this was I had a sick
feeling and a memory of being in a shower in a
lot of pain with the individual and later using
the bathroom and wiping away blood and this
was before my period ever started. It is fuzzy, I
feel sick and wierd [sic] when I try to
remember.

A.N. told the detective that the individual was Scott, that he had

penetrated her with his penis, and that the memory had occurred to

her after she tried anal sex with her boyfriend.

¶5 The prosecution charged Scott with one count of sexual

assault on a child less than fifteen years old (A.N.) by one in a

position of trust as a part of a pattern of abuse, and one count of

sexual assault on a child (E.N.) by one in a position of trust.

¶6 A month before trial, Scott filed a motion to admit, as relevant

under the rape shield statute, A.N.’s statements to the detective

that she recalled anal penetration by Scott after talking about and

engaging in anal sex with her boyfriend. The trial court denied

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Scott’s motion after a hearing. The court also denied Scott’s two

renewals of his motion during trial.

¶7 At trial, A.N. testified, among other things, that at separate

times Scott had put her hand on his erect penis and grabbed her

vagina. She also testified that she had a “fuzzy” memory of being

pressed up against the wall in the shower with Scott while both of

them were naked, feeling pain in her anus from Scott’s penis, and

later finding blood when she wiped with toilet paper.

¶8 E.N. testified that she recalled laying across Scott’s lap and

feeling his erection during a Christmas photoshoot.

¶9 Scott testified and denied any sexual misconduct.

¶ 10 The jury acquitted Scott of the charge pertaining to E.N. but

convicted him of the charge pertaining to A.N. The court sentenced

him to an indeterminate term of ten years to life in prison.

II. Discussion

¶ 11 Scott contends that the trial court erred by denying his motion

to admit A.N.’s statements about discussing and having anal sex

with her boyfriend as relevant under the rape shield statute and

that, as a result, he was denied his constitutional rights to present

a defense and to conduct meaningful cross-examination.

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¶ 12 Although the parties disagree as to preservation and the

standard of reversal, we need not resolve those disputes because we

discern no evidentiary error at all.

A. Applicable Law and Standard of Review

¶ 13 The purpose of Colorado’s rape shield statute is “to protect

sexual assault victims from humiliating public fishing expeditions

into their past sexual conduct.” People v. Conyac, 2014 COA 8M,

¶ 110. The General Assembly “has declared the state’s policy to be

that victims of sexual assaults should not be subjected to

psychological or emotional abuse in court as the price of their

cooperation in prosecuting sex offenders.” People v. McKenna, 585

P.2d 275, 278 (Colo. 1978).

¶ 14 With two exceptions not relevant here, the rape shield statute

deems evidence of specific instances of the victim’s prior or

subsequent sexual conduct presumptively irrelevant.

§ 18-3-407(1). But a party may overcome the presumption of

irrelevance if a trial court finds, based on an offer of proof, that the

sexual conduct evidence is “relevant to a material issue to the case.”

§ 18-3-407(2)(a), (e).

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¶ 15 Evidence proffered under an exception to the rape shield

statute is subject to the relevancy and prejudice limitations under

CRE 401 and 403. People v. Sims, 2019 COA 66, ¶ 45. Evidence is

relevant if it has “any tendency to make the existence of a fact of

consequence more or less probable.” People v. Hood, 2024 COA 27,

¶ 19; see CRE 401. Although the Colorado Rules of Evidence favor

the admissibility of relevant evidence, such evidence may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice. CRE 403; Hood, ¶ 19. “In reviewing the

trial court’s determination, we assume the maximum probative

value that a reasonable fact finder might give the evidence and the

minimum unfair prejudice to be reasonably expected.” Hood, ¶ 19

(quoting People v. Clark, 2015 COA 44, ¶ 18).

¶ 16 We review evidentiary rulings, including the exclusion of

evidence under the rape shield statute, for an abuse of discretion.

Conyac, ¶ 107. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law. Hood, ¶ 6.

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B. Additional Facts

¶ 17 In his motion to admit evidence of A.N.’s past sexual conduct,

Scott argued that her statements about anal sex were relevant

because they provided an alternative source for her sexual

knowledge and called into question the credibility of her allegations

against him.1 He asserted that the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice

because the evidence would directly assist the jury in determining

the truth of A.N.’s allegations and “was made contemporaneously

with A.N.’s outcry of the same sexual conduct.”

¶ 18 At the hearing, defense counsel said that the purpose of the

sexual conduct evidence was not to embarrass A.N. or to delve into

her sexual history. Rather, counsel argued, it would be very

difficult to address how her disclosure of anal penetration by Scott

occurred — and whether it was influenced by any other event —

1 The People argue that the latter rationale is not permitted because

a “defendant cannot introduce evidence of a victim’s prior sexual
history to attack the credibility of a victim as a witness.” People v.
Wallen, 996 P.2d 182, 186 (Colo. App. 1999). While this is true, in
his reply brief, Scott expressly denies intending to introduce the
evidence at issue for this reason.

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without discussing what prompted her memory of the alleged

assaults to surface.

¶ 19 The prosecutor objected, arguing that evidence that A.N. had

anal sex with her boyfriend was unduly prejudicial. He also said

that evidence of that specific act was unnecessary because the

memory of anal penetration by Scott could be explained, like A.N.’s

other memories, by referring generally to her intimate experiences

with her boyfriend.

¶ 20 In its written order denying Scott’s motion, the trial court

found that A.N.’s past experience regarding anal sex with her

boyfriend was relevant as a possible alternative source of knowledge

regarding the specific allegation of anal penetration. But the court

found that the probative value of the evidence was limited because

the jury would already be hearing evidence that A.N.’s memories of

sexual assault by Scott were triggered by consensual sexual activity

with her boyfriend. Citing Conyac, the court further found that

(1) A.N. was old enough to know about sexual matters when she

made the outcry, regardless of her experience with Scott; (2) there

was an alternative source for A.N.’s knowledge because she was

sexually active with her boyfriend; and (3) there was no indication

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that the prosecution intended to argue that A.N. was “sexually

naïve.”

¶ 21 As to prejudice, the trial court found that the danger of unfair

prejudice substantially outweighed the probative value of the

evidence because it would allow Scott “to embark on a line of

questioning that . . . would undoubtedly be embarrassing for A.N.,

and possibly paint her in a bad light to the jury, both of which the

Rape Sheild Statute attempts to avoid.”

¶ 22 At the start of trial, defense counsel renewed Scott’s motion to

introduce evidence of A.N.’s statements about sexual activity with

her boyfriend as relevant under the rape shield statute. The trial

court denied the request, resting on its prior ruling.

¶ 23 During A.N.’s direct testimony, she expressed that the

memories of Scott’s inappropriate touching surfaced after she

became “more physically intimate” with her boyfriend. When the

prosecutor asked what triggered her memories of the incidents with

Scott, she said,

Well, you know, [my boyfriend is] very
respectful and we, like, agreed to wait till
marriage and stuff. And he is very firm on that
boundary, too. But even just cuddling, he
accidentally brushed my thigh, and I don’t

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think -— like it was consensual . . . . It wasn’t
anything he was trying to do in a bad way.
But I remember . . . some of those things and
felt really just sick to my stomach and hot and
panicky and just, like, really weird and was
like, had to apologize to him because I just
kind of . . . jumped back a little bit . . . .

¶ 24 A.N. then explained that her recollection of the incidents with

Scott occurred over time, during intimate moments with her

boyfriend: “[W]e just were, like, hugging and cuddling and stuff, but

then . . . if we were, like, kissing or more just stuff like that . . .

then I would remember something or bits and pieces with more

start to come together.” Later, the prosecutor asked A.N., “When

you’re having these physical, intimate moments with your

boyfriend, and you said you had specific memories, were those

more vivid?” A.N. responded, “Yes. Yes.”

¶ 25 On cross-examination, defense counsel and A.N. had the

following exchange:

[DEFENSE COUNSEL:] And you [and your
boyfriend] were starting to get physical; is that
right?

[A.N.:] Yes.

[DEFENSE COUNSEL:] Okay. You were
engaging in what we might call intimate
physical activities?

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[A.N.:] Yes.

....

[DEFENSE COUNSEL:] It’s the fact that you
two are getting physically intimate, and he’s
asking and talking about physical things,
that’s what you told people was the reason
these memories came back, right?

[A.N.:] Just consensual. Yes. But consensual.

[DEFENSE COUNSEL:] Okay. Yeah. Okay.
But . . . you were doing it, right?

[A.N.:] Yes.

¶ 26 A.N.’s boyfriend also testified. On direct, the prosecutor asked

him if there were times when he and A.N. were “hanging out” or

“doing anything” and she got upset. He responded:

[T]here were a few moments where we would
be hanging out, and I don’t like to rush
anything with her. I respect her very much,
and I never want to make her uncomfortable in
any way. So in the beginning of our
relationship we took everything very slow. And
I mean also too, because we’re also Christians
and we also want to wait till marriage. But
during some times when we would be, you
know, cuddling or sitting together on the TV
there would be moments where she would
sometimes, kind of I guess, phase out and
kind of focus on something else. And she
would sometimes feel uneasy at first.

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¶ 27 When defense counsel asked A.N.’s boyfriend on

cross-examination if “hanging out” meant “getting intimate,” he

said, “Nope.” Defense counsel then asked, “And are you saying you

then immediately said after you wanted to respect her and not

make her do anything, and you had that comment about being

Christians? Are you saying that during moments of intimacy is

when she was pulling back?” He responded, “Usually.”

¶ 28 The next day, defense counsel again renewed Scott’s motion to

introduce evidence under the rape shield statute based on the

testimony from A.N. and her boyfriend indicating they were waiting

for marriage and were Christian. The court denied the request.

C. Probative Value Versus Unfair Prejudice

¶ 29 Scott argues that the trial court abused its discretion by

finding that the probative value of the evidence of A.N. trying anal

sex with her boyfriend was outweighed by the danger of unfair

prejudice. Specifically, he claims that the court didn’t assume the

maximum probative value the jury might give the evidence and the

minimum unfair prejudice reasonably expected. See Hood, ¶ 19.

¶ 30 As an initial matter, the People don’t challenge the trial court’s

finding that the evidence was “marginally relevant to the

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circumstances of [A.N.’s] disclosure.” We therefore agree with

Scott’s assertion that the People concede he “overcame the

presumption of irrelevance,” making the only contested issue on

appeal the trial court’s findings under CRE 403 as to probative

value and prejudice.

1. Probative Value

¶ 31 Scott asserts that the probative value of the evidence as an

alternative source of A.N.’s knowledge of anal sex was greater than

the trial court acknowledged because A.N. told the detective she

didn’t know what anal sex was until talking with her boyfriend and

because she compared her experience with her boyfriend to her

memory of the alleged assault. Citing People v. Osorio-Bahena,

2013 COA 55, he argues that the degree of similarity between A.N.’s

experience with her boyfriend and her allegations against Scott

could have led the jury to find that her experience with her

boyfriend “gave her the knowledge to ‘contrive or imagine’ the

alleged anal penetration by Scott.”

¶ 32 Evidence of prior sexual conduct may be relevant to show an

alternative source for a child victim’s sexual knowledge and to rebut

“the inference that a child victim could not describe the sexual acts

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unless the defendant had committed the alleged acts.” Id. at ¶ 27

(quoting State v. Grovenstein, 530 S.E.2d 406, 410 (S.C. Ct. App.

2000)). The probative value of such evidence may rest on the

degree of similarity between the alleged assault and the other

sexual activity. Id. at ¶ 31. But see People v. Kyle, 111 P.3d 491,

498 (Colo. App. 2004) (“[M]ere similarity between two series of

sexual assaults is insufficient to demonstrate the relevance of the

facts of the first series to the facts at issue in the second series.”),

disapproved of on other grounds by, Zoll v. People, 2018 CO 70. But

it also “necessarily depends” on the nature of the sex acts involved,

the child’s age and circumstances, and the child’s other sources of

knowledge. Osorio-Bahena, ¶ 31. A court may also consider

“whether less prejudicial means are available” to show the child’s

sexual knowledge, id., and “whether the defense or the prosecution

has relied upon the inference that a child of a certain age would or

would not have knowledge of sexual acts,” Conyac, ¶ 118.

¶ 33 “Colorado case law does not assume or presume that a child

victim is sexually naïve.” Id. at ¶ 117. Rather, courts have said

that “sexually mature children may be less likely to be confused

13
about the perpetrator’s identity and are capable of understanding

matters of a sexual nature.” Id.

While it might be possible, with regard to
children of a sufficiently tender age, to infer,
without more, a complete lack of knowledge
about sexual matters . . ., this could hardly be
the case of a child old enough to interact with
other children and come in contact with
television or other forms of media
entertainment.

Pierson v. People, 2012 CO 47, ¶ 20.

¶ 34 Here, A.N. was seventeen at the time of her disclosures and

nineteen at the time of trial. While the jurors were not made aware

that A.N. had told the detective she didn’t know about anal sex

until her boyfriend explained it to her, they could have inferred,

based on her age, that her access to “[high] school peers, social

media, television, and music” would have contributed to her

knowledge of anal sex. Conyac, ¶ 119.

¶ 35 Moreover, A.N. testified several times that her memories of

sexual assaults by Scott, including anal penetration, were triggered

by physical intimacy with her boyfriend. The jury could therefore

consider an alternative basis for A.N.’s sexual knowledge aside from

that gained from Scott’s alleged assaults. See id. at ¶ 120.

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¶ 36 Also, the prosecutor didn’t raise the issue of “precocious

sexual knowledge” or argue that A.N. was sexually naïve and that

her experience with Scott was the only source of her ability to

describe anal penetration. Id. at ¶ 121.

¶ 37 Thus — despite the alleged similarities between A.N.’s

experience with her boyfriend and the allegation against Scott —

the trial court properly found that the probative value of the

evidence that A.N. had anal sex with her boyfriend was limited

because (1) the jury could have inferred that she was old enough to

know about anal sex when she outcried, regardless of her

experience with Scott; (2) there was alternative evidence of her

sexual knowledge; and (3) the prosecution did not argue that she

was sexually naïve and had no other source of sexual knowledge.

See id. at ¶ 124.

2. Unfair Prejudice

¶ 38 Scott claims that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice because

introduction of the evidence “would not have been a broad fishing

trip to probe into [A.N.’s] sexual history” but “would have been a

targeted inquiry into one specific act that was disclosed to the police

15
and was the trigger of her recalled memory of the alleged sexual

assault.”

¶ 39 But the rape shield statute specifically prohibits the

introduction of “evidence of specific instances of the victim’s . . .

prior or subsequent sexual conduct.” § 18-3-407(1) (emphasis

added). Just because Scott alleges this would have been a “targeted

inquiry into one specific act” and not a “broad fishing trip” does not

place the evidence outside the purview of the statute. See People v.

MacLeod, 176 P.3d 75, 78 (Colo. 2008) (the rape shield protections

apply no matter the purpose for which the defendant intended to

introduce the evidence at trial).

¶ 40 Furthermore, despite the limited probative value of the

evidence, “the balancing test required by CRE 403 weighs in favor of

excluding the evidence to avoid unfair prejudice.” People v. Villa,

240 P.3d 343, 355 (Colo. App. 2009). Any relevance of A.N.’s

experience of anal sex with her boyfriend “was not so strong as to

overcome the rape shield statute’s presumption against the

admissibility of such evidence.” Id. The introduction of such

evidence — in a public setting — would substantially risk A.N.’s

16
“humiliation and psychological abuse, [which] is precisely what the

statute prohibits.” Id.

D. Testimony that A.N. and Her
Boyfriend Were “Waiting Till Marriage”

¶ 41 Finally, Scott argues that the trial court abused its discretion

by excluding the evidence of A.N. trying anal sex with her boyfriend

“after they both denied physical intimacy at trial and presented

themselves as good Christians who were waiting for marriage.” He

asserts that after A.N. and her boyfriend “denied physical intimacy,”

the jury was no longer aware that it was the sexual activity between

A.N. and her boyfriend that triggered her memories of assault by

Scott. Therefore, he claims, the jury could have inferred that A.N.

was not sexually experienced and that she obtained her knowledge

of anal sex from abuse by Scott, which were inferences he needed to

rebut with the evidence of A.N.’s prior sexual conduct.

¶ 42 But the record doesn’t support Scott’s assertion that A.N. and

her boyfriend outright denied physical intimacy, leaving the jury to

conclude that they were not sexually active. On direct and

cross-examination, A.N. confirmed that she had been engaging in

intimate physical activities with her boyfriend, which were what

17
triggered her memories of incidents with Scott. And during her

boyfriend’s cross-examination, he said that it was during “moments

of intimacy” that A.N. “[u]sually” pulled back. True, A.N. and her

boyfriend specifically cited kissing, cuddling, hugging, and “more

just stuff like that,” and said they were “wait[ing] till marriage.” But

neither the prosecutor nor defense counsel asked either witness

what “waiting till marriage” meant, which could mean different

things to different people. And to the extent that A.N. and her

boyfriend contradicted themselves on the stand, it was up to the

jury to weigh the credibility of witnesses, determine the weight to

give certain evidence, and resolve inconsistencies in the evidence.

See People v. Poe, 2012 COA 166, ¶ 14.

¶ 43 Furthermore, as we have discussed, even without sexual

activity between A.N. and her boyfriend as an alternative source of

her knowledge of anal sex, the probative value of the evidence that

she had anal sex with her boyfriend was still limited because the

jury could have inferred that she was old enough to know about

anal sex regardless of her experience with Scott, and the

prosecution did not argue that she was sexually naïve. Moreover,

the risk of unfair prejudice to A.N. from the introduction of the

18
evidence remained high, as this is precisely the type of evidence

that the rape shield statute prohibits.

¶ 44 For these reasons, we conclude that the trial court did not

abuse its discretion by denying Scott’s motion to introduce evidence

as relevant under the rape shield statute.

III. Disposition

¶ 45 The judgment of conviction is affirmed.

JUDGE GROVE and JUDGE MOULTRIE concur.

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