People v. Chirinos-Raudales

491 P.3d 538

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Dennis R. CHIRINOS-RAUDALES, Defendant-Appellant.

Court of Appeals No. 17CA1132

Colorado Court of Appeals, Division I.

Announced March 25, 2021

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Dennis R. Chirinos-Raudales, appeals his judgment of conviction and sentence entered on jury verdicts finding him guilty of sexual assault on a child, sexual assault on a child by one in a position of trust, and sexual assault on a child – pattern of abuse. In part, he challenges the admission of the victim's forensic interview under section 13-25-129, C.R.S. 2020 (the child hearsay statute), which provides that certain out-of-court statements by a child, not otherwise covered by hearsay exceptions, are admissible. The statute applies to statements made by a child "as child is defined under the statutes that are the subject of the action." § 13-25-129(2).

¶ 2 We must decide for the first time whether the relevant age of the child is that described in the language establishing the general offense, or the age relevant to the specific sentence enhancer with which a defendant is charged. We conclude that the relevant age is that applicable to the general offense, not the age relevant to the sentence enhancer. Thus, we reject Chirinos-Raudales's challenge to the admission of the child hearsay. We also reject his claim that the trial court should have declared a mistrial after a prosecution witness spontaneously implied that her job was to determine whether the child was telling the truth.

¶ 3 However, we discern multiple errors in the judgment of conviction related to the nature of the convictions and the sentence imposed. Consequently, we affirm the judgment of conviction in part, vacate it in part, and remand the case to the trial court for resentencing consistent with this opinion.

I. Background

¶ 4 Chirinos-Raudales is the victim's stepfather. In 2011, the victim reported to a school nurse that Chirinos-Raudales had sexually assaulted her. The victim was interviewed by an employee of Denver Human Services and, later, by a forensic interviewer from the Denver Children's Advocacy Center; in both interviews, she disclosed that Chirinos-Raudales had assaulted her multiple times over the past several years.

¶ 5 The People charged Chirinos-Raudales 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). In a bill of particulars, the People explained that counts one, two, and three "all relate to the same incident[,] which is designated as the ‘Virginity Incident,’ " and that counts four and five "both relate to the same incident[,] which is designated as the ‘Last Time.’ " (Although the bill of particulars referred to the second incident as the "Last Time," the parties, instructions, and verdict forms thereafter consistently referred to it as the "Last Incident." We shall as well.)

¶ 6 The case proceeded to trial, at the conclusion of which a jury found Chirinos-Raudales guilty of counts two, three, four, and five. For reasons we cannot discern, the jury was not instructed on count one and did not return a verdict on that count. The trial court, however, entered a judgment of conviction that reflected convictions — and imposed sentences — on all five counts. Specifically, the trial court sentenced Chirinos-Raudales to the custody of the Department of Corrections on

• count one, for eight years to life, consecutive to counts two and three;

• count two, for eight years to life, consecutive to counts one and three;

• count three, for twenty-four years to life, consecutive to counts one and two;

• count four, for eight years to life, concurrent with all other counts; and

• count five, for four years to life, concurrent with all other counts.

¶ 7 Chirinos-Raudales now appeals.

II. Discussion

¶ 8 Chirinos-Raudales contends that the trial court erred by (1) admitting the victim's forensic interview; (2) denying Chirinos-Raudales's motion for a mistrial; and (3) entering separate convictions on counts one and three, as well as consecutive sentences on counts one through three. We disagree with the first two arguments but agree with the third.

A. Admission of the Forensic Interview

¶ 9 Chirinos-Raudales argues the trial court erred by admitting the victim's forensic interview under the child hearsay statute. He contends that the interview would only have been admissible under the child hearsay statute if the victim was younger than fifteen when she gave the statement. We disagree.

1. Additional Background

¶ 10 In March of 2011, a forensic interviewer employed with the Denver Children's Advocacy Center conducted a forensic interview of the victim regarding the sexual assaults. During this videotaped interview, the victim described the sexual assaults in detail.

The trial court found that the interview was admissible as a child hearsay statement, and the video of the interview was admitted into evidence and played during the trial. Although the incidents of abuse the victim described occurred before she turned fifteen years of age, the interview took place shortly after her fifteenth birthday.

2. Standard of Review and Applicable Law

¶ 11 This issue presents a question of statutory interpretation, which we review de novo. People v. Perez , 2016 CO 12, ¶ 8, 367 P.3d 695.

¶ 12 Hearsay "is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Hearsay is inadmissible "except as provided by these rules or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado." CRE 802. The child hearsay statute provides one such exception:

An out-of-court statement made by a child, as child is defined under the statutes that are the subject of the action, or a person under fifteen years of age if child is undefined under the statutes that are the subject of the action, describing all or part of an offense of unlawful sexual behavior ... performed or attempted to be performed with, by, on, or in the presence of the child declarant, and that is not otherwise admissible by a statute or court rule that provides an exception to the hearsay objection, is admissible ....

§ 13-25-129(2).

3. Analysis

¶ 13 Chirinos-Raudales contends that the child hearsay statute is applicable only if the victim was less than fifteen years old when she gave the statement. We disagree.

¶ 14 In counts two and four, the People charged Chirinos-Raudales with sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3(1), C.R.S. 2020. This statute states that

[a]ny actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.

§ 18-3-405.3(1) (emphasis added).

¶ 15 Thus, in one of the statutes under which Chirinos-Raudales was charged — in other words, one of the statutes that is "the subject of the action" — "child" is defined as someone who is less than eighteen years of age. And here, the victim was less than eighteen years old when she gave her statement.

¶ 16 The statute also includes a sentence enhancer, which provides that if the victim is less than fifteen years of age, then the violation is elevated from a class 4 felony to a class 3 felony. § 18-3-405.3(2)(a), (3) ; see People v. Ewing , 2017 COA 10, ¶ 17, 413 P.3d 188 ("The ‘under fifteen’ condition, which elevates the crime from a class 4 felony to a class 3 felony, is a sentence enhancer, not an element of a separate offense."). Because the victim was under fifteen years old at the time of the offense, the People charged Chirinos-Raudales under subsection (2)(a) of the statute. Chirinos-Raudales argues that because he was charged with this sentence enhancer, then the definition contained in that specific subsection of the statute controls. Thus, he contends, because the victim here was not under the age of fifteen at the time of the interview, her forensic interview was inadmissible as a child hearsay statement. But Chirinos-Raudales misinterprets the child hearsay statute.

¶ 17 As noted, under the child hearsay statute, a "child is defined under the statutes that are the subject of the action." § 13-25-129(2). Here, the statute that is "the subject of the action" is section 18-3-405.3, which provides that the victim is considered a "child" if she is "less than eighteen years of age." See also COLJI-Crim. 3-4:40 (2019) (listing the fourth element of sexual assault on a child by one in a position of trust as "subjected a child, under eighteen years of age , who was not his ... spouse to any sexual contact") (emphasis added).

¶ 18 The fact that the victim was young enough at the time of the offenses for Chirinos-Raudales to face a sentence enhancer is of no import to this issue. Sentence enhancers are not elements of the offense, and "attach only after the prosecution has proven that the defendant committed the offense." People in Interest of B.D. , 2020 CO 87, ¶ 14, 477 P.3d 143 ; see also People v. Eggers, 196 Colo. 349, 351, 585 P.2d 284, 286 (1978) (sentence enhancers are "triggered only after a defendant has been found guilty of the substantive crime") (citation omitted).

¶ 19 If we were to accept Chirinos-Raudales's interpretation, a defendant whose victim turned fifteen...