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