People v. Chirinos-Raudales.
2021 COA 37. No. 17CA1132. Evidence—Child Hearsay Statute—Illegal Sentence—Concurrent Sentence.
March 25, 2021
Defendant sexually assaulted his stepdaughter when she was under age 15. The stepdaughter reported the sexual assault to a school nurse, and she was interviewed by a Denver Human Services (DHS) employee and a forensic interviewer from the Denver Children’s Advocacy Center. In both interviews, she disclosed that defendant had assaulted her multiple times over several years. The People charged defendant with sexual assault on a child with force (count one), two counts of sexual assault on a child by one in a position of trust (counts two and four), sexual assault by one in a position of trust—pattern of abuse (count three), and sexual assault on a child (count five). A jury found defendant guilty of counts two through five, but the court entered a judgment of conviction and imposed sentences on all five counts.
On appeal, defendant argued that the trial court erred by admitting the victim’s forensic interview under the child hearsay statute because the victim was not younger than 15 when she gave the statement. The child hearsay statute provides an exception to the rule against hearsay and provides that a “child is defined under the statutes that are the subject of the action.” CRS § 18-3-405.3 is the subject of the action in this case, and it defines “child” as someone who is less than 18 years of age. Here, while the victim interview occurred shortly after the victim turned 15, the crimes occurred when she was under 18 years old. Therefore, the court did not err by admitting the forensic interview under the child hearsay statute.
Defendant also argued that the trial court abused its discretion when it denied his motion for a mistrial, which was based on the testimony of a DHS administrator who interviewed the victim. The administrator explained the importance of asking open-ended and nonleading questions during her interviews to determine the truth of the allegations. Here, the administrator’s statement was not substantially prejudicial, the prosecutor did not reference it again, and the trial court gave a curative instruction. Accordingly, the trial court did not abuse its discretion.
Defendant further argued that the trial court entered an erroneous judgment of conviction and imposed an illegal sentence by failing to merge the convictions for counts one and three and entering consecutive sentences on counts one through three. Because the jury was not instructed on count one and did not return a verdict form on it, the trial court violated defendant’s constitutional right to a jury trial when it entered a judgment of conviction on count one, so this count must be vacated. And the trial court was required to impose concurrent sentences on counts two and three because they were supported by identical evidence. Therefore, the trial court erred.
The judgment of conviction was vacated as to count one. The convictions on the remaining counts were affirmed. The sentences as to counts two and three were vacated and the case was remanded for resentencing on those counts.