Chirinos-Raudales v. People.

2023 CO 33. No. 21SC325. Criminal Law—Child Hearsay Statute—Sexual Assault on a Child—Concurrent Sentences—Identical Evidence.

June 12, 2023

The Supreme Court considered, first, whether the trial court properly admitted statements the victim made when she was 15 years old under the child hearsay statute, which provides that out-of-court statements describing an offense of unlawful sexual behavior are admissible if made by a child “as child is defined under the statutes that are the subject of the action.” CRS § 13-25-129(2). The Court held that, pursuant to the plain language of the child hearsay statute, the “subject of the action” for sexual assault on a child by one in a position of trust is the substantive offense, which applies when the child is under age 18, rather than the sentence enhancer, which applies when the child is under age 15.

Second, the Court considered whether the trial court abused its discretion by entering consecutive sentences for two of the defendant’s convictions notwithstanding CRS § 18-1-408(3), which requires a trial court to impose concurrent sentences when multiple convictions involving a single victim are supported by identical evidence. The Court held that because the two counts at issue here were not supported by identical evidence, § 18-1-408(3) did not mandate that the trial court enter concurrent sentences for the two counts.

Accordingly, the Court affirmed the portion of the court of appeals opinion concluding that the trial court properly admitted statements made by the victim under the child hearsay statute. However, the Court reversed the portion of the court of appeals opinion that ordered the trial court to impose concurrent sentences for two of the counts and remanded for further proceedings consistent with this opinion.