23CA0697 Peo v Arrington 04-16-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0697 Boulder County District Court No. 21CR441 Honorable Nancy W. Salomone, Judge
The People of the State of Colorado,
Plaintiff-Appellee and Cross-Appellant,
v.
Kasey James Arrington,
Defendant-Appellant and Cross-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE JOHNSON Pawar and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado; Michael T. Dougherty, District Attorney, Ryan P. Day, Senior Deputy District Attorney, Boulder, Colorado, for Plaintiff-Appellee and Cross-Appellant
Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant and Cross-Appellee ¶1 Defendant, Kasey James Arrington (Arrington), appeals his
judgment of conviction on a jury verdict finding him guilty of second
degree kidnapping, unlawful sexual contact, and criminal attempt
to commit sexual assault. The jury also made special findings that
(1) Arrington caused submission through force or violence during
the unlawful sexual contact, elevating that charge from a
misdemeanor to a felony; and (2) L.M., the person kidnapped, was
also the victim of another specified crime.
¶2 Arrington contends that (1) the district court erred by denying
his motion for a new trial based on juror misconduct; and (2) the
unlawful sexual contact (force) conviction violates his due process
and equal protection rights. On cross-appeal, the Attorney General
contends that the district court was required to impose consecutive
sentences and thus erred by sentencing Arrington concurrently.
¶3 We conclude that the district court did not err in denying
Arrington’s motion for a new trial and that his unlawful sexual
contact (force) conviction does not violate his due process and equal
protection rights. But we partially agree with the Attorney
General’s cross-appeal that the district court erred by sentencing
Arrington concurrently, and not consecutively, with respect to the
1 kidnapping and sexual assault offenses. Therefore, we affirm in
part, reverse in part, and remand the case to the district court for
resentencing.
I. Background
¶4 The prosecutor presented the following facts upon which the
jury found Arrington guilty.
¶5 L.M. was attacked by Arrington while she worked alone at a
drive-through coffee kiosk. She testified that the assailant attacked
her from behind, putting his hands on her crotch, pulling down her
leggings and underwear, and touching her vaginal area. The
attacker moved her into the bathroom area, she continued to resist
and scream, and eventually he fled. The identity of L.M.’s attacker
was disputed and a critical issue at trial, but L.M.’s testimony and
DNA evidence on a number of objects at the kiosk, including on
L.M.’s facemask and ear, tied Arrington to the attack.
¶6 Arrington was charged with and ultimately convicted of three
counts: (1) second degree kidnapping, elevated to a class 2 felony
because the jury found L.M. was the victim of a sexual offense
during the kidnapping; (2) unlawful sexual contact, elevated to a
class 4 felony as the jury found Arrington caused L.M.’s submission
2 through force or violence; and (3) criminal attempt to commit sexual
assault, a class 5 felony. The district court sentenced him to twelve
years in the custody of the Department of Corrections (DOC) for the
kidnapping conviction, eight years to life in DOC for the unlawful
sexual contact conviction, and three years in DOC for the attempted
sexual assault conviction — with the sentences on the three counts
to run concurrently.
II. Motion for a New Trial
¶7 Arrington contends the district court erred by denying his
motion for a new trial based on a juror’s intentional concealment of
his criminal conviction during voir dire. We disagree.
A. Additional Facts
¶8 Following entry of the jury’s verdict, Arrington filed a motion
for a new trial alleging that Juror B.C. “willfully refused to disclose
material information during jury selection.”1 Relevant here, B.C.
1 In the motion for a new trial, Arrington also alleged two other
jurors had failed to disclose past criminal charges. Although he discusses the facts relating to one of those two other jurors on appeal, he makes no argument that the district court abused its discretion by denying his motion involving these other jurors. As a result, we consider any claims on the two other jurors abandoned. See People v. Smith, 2017 COA 12, ¶ 27 (we deem abandoned claims raised below but not pursued on appeal).
3 failed to disclose his criminal conviction for a municipal theft case
occurring twelve years prior despite being asked during voir dire
whether he had been involved in a criminal case. After a hearing on
the motion and questioning of B.C., the district court found that he
committed juror misconduct by intentionally concealing his past
conviction. Even so, the court concluded that the conviction did
not render B.C. incapable of rendering a fair and impartial verdict
in Arrington’s case and denied the motion.
B. Standard of Review and Applicable Law
¶9 We review a district court’s ruling on a motion for a new trial
alleging juror misconduct for an abuse of discretion. See People v.
Newman, 2020 COA 108, ¶ 9; People v. Garcia, 752 P.2d 570, 584
(Colo. 1988). A court abuses its discretion when its decision “is
manifestly arbitrary, unreasonable, or unfair,” or when it
“misconstrues or misapplies the law.” People v. Melara, 2025 COA
48, ¶ 16. We review the district court’s legal conclusions de novo
and defer to its factual findings when supported by the evidence.
West v. People, 2015 CO 5, ¶ 11.
¶ 10 A criminal defendant is constitutionally entitled to a fair trial
by an impartial jury. U.S. Const. amends. VI, XIV; Colo. Const. art.
4 II, § 16. The failure of a juror to answer material questions
truthfully during voir dire is misconduct and may justify granting a
new trial, but untruthful answers from jurors “do not per se entitle
a party to a new trial.” Black v. Waterman, 83 P.3d 1130, 1136
(Colo. App. 2003).
C. Analysis
¶ 11 Arrington and the Attorney General agree that, if a juror’s
intentional nondisclosure during voir dire violated Arrington’s right
to a fair and impartial jury, he is entitled to a new trial. But the
parties diverge from there.
¶ 12 Arrington contends that when a court finds the juror
misconduct is intentional — like it did here — a presumption of
prejudice is applied, requiring reversal. He points to People v. Rael,
578 P.2d 1067, 1068 (Colo. App. 1978), and People v. Borrelli, 624
P.2d 900, 903 (Colo. App. 1980) — cases decided by divisions of this
court — to support his claim that a juror’s intentional concealment
of a material fact is per se prejudicial because it fundamentally
5 undermines the fairness and reliability of the trial.2 He also claims
that the supreme court adopted a presumption of prejudice in
People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983), because
intentional nondisclosure is evidence of a juror’s inability to render
a fair and impartial verdict.
¶ 13 In response, the Attorney General argues the district court
correctly determined that a juror’s knowing concealment of relevant
information is not per se prejudicial necessitating automatic
reversal. The Attorney General cites McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548, 556 (1984), where the Supreme
Court established a two-part test that a party must satisfy to obtain
a new trial: A party must (1) “first demonstrate that a juror failed to
answer honestly a material question on voir dire” and (2) “then
2 These cases appear to no longer be good law with respect to their
conclusions regarding the denial of a defendant’s right to exercise his peremptory challenges. See People in Interest of D.F.A.E., 2020 COA 89M, ¶ 26 (concluding that all three cases have been implicitly overruled by Vigil v. People, 2019 CO 105, and People v. Novotny, 2014 CO 18). Because Arrington does not present his challenge as one denying his right to exercise a peremptory challenge, we rely on the cases for an analytical framework to address his contention that a juror’s intentional nondisclosure of information during voir dire results in presumptive prejudice to a defendant.
6 further show that a correct response would have provided a valid
basis for a challenge for cause.”
¶ 14 We decline the Attorney General’s request to adopt
McDonough’s two-part test. That case involved alleged juror
misconduct in the context of a civil matter, so we leave for another
day the question of whether its holding should be applied to state
criminal proceedings. See Mulberger v. People, 2016 CO 10, ¶ 23
(Gabriel, J., concurring in the judgment) (recognizing the “cardinal
principle of judicial restraint” that, “if it is not necessary to decide
more, it is necessary not to decide more” (citation omitted)). More
importantly, we need not decide whether McDonough should apply
to criminal proceedings because there are sufficient state law cases
that allow us to decide, and support our rejection of, Arrington’s
contention. We turn to the cases cited by the parties.
¶ 15 In Dunoyair, 660 P.2d at 895, an empaneled juror failed to
disclose his acquaintance with one of the prosecutor’s witnesses.
The supreme court noted that a “juror’s deliberate
misrepresentation or knowing concealment is itself evidence that
the juror was likely incapable of rendering a fair and impartial
verdict in the matter.” Id. The court concluded, however, that
7 because the juror’s nondisclosure was “inadvertent, and the
undisclosed information pertained to a prosecution witness whose
testimony was of only peripheral significance to the charge,” the
misconduct was not presumptively prejudicial or sufficient by itself
to warrant a new trial. Id. The court continued, “In the absence of
a showing by the defendant that the juror’s prior acquaintance with
the witness was such as to create an actual bias either in favor of
the prosecution or against the defendant,” the court would assume
“that the juror followed the instructions of the court and decided
the case solely on the basis of the evidence and the law.” Id. at 896;
see also People v. McNeely, 68 P.3d 540, 543-44 (Colo. App. 2002)
(affirming the denial of a new trial because the juror’s nondisclosure
that she remotely knew the defendant was inadvertent).
¶ 16 In Borrelli, 624 P.2d at 903, an empaneled juror failed to
disclose that she was being actively treated for severe mental illness
and was prescribed psychoactive drugs by a psychiatrist who was a
witness in the case. When asked about her relationship with the
psychiatrist during voir dire, though, the juror represented the
doctor was a friend of her mother’s. The division held that a new
trial was mandated because “[u]nder the circumstances present . . .
8 the lack of candor on the part of the juror during voir dire denied
defendant his right to make an intelligent decision as to whether to
challenge the juror for cause, exercise a peremptory challenge, or
accept the juror.” Id. The division reasoned that “[a] defendant has
the right to exercise all of his peremptory challenges, and when a
juror misrepresents or conceals material and relevant matters, that
right, as well as the right to challenge for cause, is impaired.” Id.
¶ 17 Finally, in Rael, 578 P.2d at 1068, the defendant was on trial
for burglary and an empaneled juror failed to disclose his own
burglary conviction during voir dire. The division held that “[a]
juror who misrepresents or conceals material and relevant matters
is guilty of misconduct, and it may be prejudicial to either or both
parties because it impairs the right to challenge for cause or
peremptorily.” Id. (citation omitted). The division concluded that
prejudice to the defendant was presumed in that case and a new
trial was required because the “defendant [was] denied the right to
exercise his peremptory challenge as to [the juror who committed
misconduct].” Id.
¶ 18 Although we agree with Arrington that there is broad language
in the cases to support that a juror’s intentional concealment of
9 information may be presumptively prejudicial, Arrington’s
interpretation appears to read out that the information concealed
by the juror must also be material. While a juror’s deliberate
misrepresentation is “itself evidence that the juror was likely
incapable of rendering a fair and impartial verdict in the matter,” it
is not in and of itself dispositive evidence that such a juror would be
incapable of being fair and impartial. Dunoyair, 660 P.2d at 895.
We conclude that it is within a district court’s discretion to make
the final determination of whether a juror is incapable of rendering
a fair and impartial verdict in light of the nature of the intentional
nondisclosure and its materiality in the context of the case.
¶ 19 At the evidentiary hearing on Arrington’s motion for a new
trial, juror B.C. testified that he interpreted the question posed
about prior criminal history to encompass only cases resulting in
criminal convictions and this is why he did not disclose the two
cases in which he had been charged but not convicted of the
offenses. As to his shoplifting case in which he was convicted, he
testified that he had “completely forgotten it.”
¶ 20 The court concluded that B.C. “was credible in some respects,
but not in others.” As it relates to the two cases in which he was
10 not convicted, the court found B.C. “credible that he misunderstood
the Court’s question regarding involvement in the criminal justice
system; namely, that he mistakenly believed the Court’s inquiry did
not extend to dismissed cases.”3 But it did not find him credible
about his failure to disclose his shoplifting conviction because he
“was arrested in the presence of his partner and child and placed in
a holding cell at a mall,” he attended several court appearances and
completed a class and community service, and he testified that the
experience was “traumatic.” Based on all this, the court found that
“[i]t did not logically follow that juror B.C. completely forgot about
this entire event.” The court concluded that B.C. “intentionally
concealed” his shoplifting conviction.
¶ 21 Despite the court’s finding, though, the court determined that
it must then analyze whether “juror B.C. was likely incapable of
rendering a fair and impartial verdict in Mr. Arrington’s trial.” It
held that, while it was “deeply troubling” that B.C. did not disclose
the information consistent with the court’s oath, the nondisclosure
3 Arrington does not challenge the court’s ruling as to B.C.’s
nondisclosure of his two criminal cases that were dismissed because the court found that his nondisclosures were inadvertent.
11 involved a “case . . . remote in time, minor, [and] dissimilar to the
allegations against Mr. Arrington” and, therefore, the case could not
“conceivably have created any likelihood that juror B.C. . . .
harbor[ed] a prejudice against” Arrington. The court reasoned that
based on B.C.’s testimony, instead of the nondisclosure evidencing
an inability to be fair and impartial, the “more logical [conclusion]
would be an inference that juror B.C. failed to disclose the
experience because he was ashamed of it, and this is indeed the
inference that the Court draws.”
¶ 22 The district court’s findings and conclusions are consistent
with the case law. Our reading of a materiality component as part
of a juror’s intentional nondisclosure is based on the outcomes in
those cases. In Borrelli, 624 P.2d at 903, the division found the
intentional nondisclosures material and, therefore, prejudicial
because the juror was being treated by the psychiatrist-witness —
as opposed to the doctor simply being an acquaintance of a
relative — and taking specific drugs that, if known to the parties,
might have impacted the parties’ perception of the juror’s ability to
serve. Likewise, in Rael, 578 P.2d at 1068, the division concluded
that the juror’s conviction for the same offense for which the
12 defendant was accused was intentional and material. And although
in Dunoyair, 660 P.2d at 895, the supreme court found the juror’s
disclosure inadvertent, it also concluded “the undisclosed
information pertained to a prosecution witness whose testimony
was of only peripheral significance to the charge.”
¶ 23 Because B.C.’s criminal conviction was dissimilar to the
charges faced by Arrington, the district court’s conclusions support
that B.C.’s conviction for shoplifting, without more, failed to create
“an actual bias either in favor of the prosecution or against the
defendant.” Id. at 896. We conclude that when the juror’s
nondisclosure does not by itself evidence animus or an inability to
be fair and impartial — as it did here, given the court’s conclusion
that B.C. was likely simply ashamed of the prior conviction — there
must exist a materiality nexus to the juror’s nondisclosure. To not
have such a requirement would mean that any juror’s intentional
nondisclosure — however irrelevant, minor, or distant in time to the
criminal charges or to the circumstances of the case — would result
in reversal of a defendant’s criminal conviction without a finding
that the juror could not be fair and impartial. The cases do not
support that. Otherwise, Rael and Borrelli would not have needed
13 to discuss the nature of the intentional nondisclosure at all but
could have simply held the juror acted intentionally regardless of
the type of information withheld.
¶ 24 Therefore, we conclude that the district court did not abuse its
discretion by denying Arrington’s motion for a new trial.
III. Due Process and Equal Protection
¶ 25 Arrington argues his conviction for unlawful sexual contact
(force) under section 18-3-404, C.R.S. 2025, is unconstitutional,
both facially and as applied, because he was sentenced more
harshly than a similarly situated person convicted of a more serious
offense would have been, violating his due process and equal
protection rights. We disagree.
A. Standard of Review and Applicable Law
¶ 26 We review questions of statutory interpretation and
construction de novo. See People v. Bruno, 2014 COA 158, ¶ 6. A
party “challenging a statute on constitutional grounds bears the
burden of establishing the statute’s unconstitutionality beyond a
reasonable doubt.” People v. Hicks, 262 P.3d 916, 919 (Colo. App.
2011).
14 ¶ 27 No state shall “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. Equal
protection of the laws “assures the like treatment of all persons who
are similarly situated.” Dean v. People, 2016 CO 14, ¶ 11. The due
process clause of the Colorado Constitution implies “a similar
guarantee.” Id.; see Colo. Const. art. II, § 25. Colorado’s guarantee
of equal protection is violated when “two statutes proscribe similar
conduct, yet the scheme imposes the harsher penalty for acting
with intent to cause, or for actually causing, a less grievous result.”
Dean, ¶ 15. Unless a suspect classification or fundamental right is
implicated, equal protection is not violated “so long as the legislative
classification is not arbitrary or unreasonable, and the differences
in the provisions bear a reasonable relationship to the public policy
to be achieved.” Id. at ¶ 16. Put simply, equal protection is not
violated when “differences in treatment are rationally justified.” Id.
When analyzing these claims, courts “compare[] the relative severity
of sentences by reference to the maximum possible period of
incarceration, not the timing of parole eligibility.” People v. Maloy,
2020 COA 71, ¶ 17 (quoting Dean, ¶ 10).
B. Analysis
15 ¶ 28 Arrington contends that the sentencing scheme for unlawful
sexual contact (force) in section 18-3-404 is harsher than that of
the more serious offense of sexual assault in section 18-3-402,
C.R.S. 2025. We disagree.
¶ 29 Both unlawful sexual contact and attempt to commit sexual
assault require proof that the defendant “knowingly” engaged in, or
attempted to engage in, nonconsensual sexual activity — the former
requiring proof of sexual contact, the latter attempted sexual
intrusion or penetration. § 18-3-404(1); § 18-3-402(1); see § 18-2-
101(1), C.R.S. 2025 (defining criminal attempt to commit a crime).
If the offense is committed by force, unlawful sexual contact is
elevated to a class 4 felony, § 18-3-404(2)(b), while sexual assault is
elevated to a class 3 felony if committed by force,4 § 18-3-402(4).
Both are considered “sex offenses,” for which the Colorado Sex
Offender Lifetime Supervision Act applies. § 18-1.3-1003(5)(a)(I)(A),
(5)(a)(III)(A), (5)(b), C.R.S. 2025; § 18-1.3-1004, C.R.S. 2025.
4 Here, it was not put before the jury whether Arrington’s attempted
sex assault was committed by force, so it was sentenced as a class 5 felony.
16 ¶ 30 The chart that follows summarizes relevant components of the
statutory sentencing scheme for unlawful sexual contact (force), a
class 4 felony, and for sexual assault (force), a class 3 felony:
Unlawful Sexual Sexual Assault Contact (force) Sentencing Range5 4-12 years to life 4-12 years to life Aggravated Range6 N/A 4-24 years to life (already aggravated) Parole7 10 years to life 20 years to life Probation Eligibility8 None 20 years to life ¶ 31 While Arrington points out that a probationary sentence is
precluded for an unlawful sexual contact (force) conviction but is
permitted for a sexual assault (force) conviction, this fact is not
dispositive to our analysis. Rather, as Arrington correctly notes in
his brief, we are to compare the “relative severity of sentences by
reference to the maximum possible period of incarceration, not the
5 § 18-1.3-401(1)(a)(V.5)(A), (6), (8)(a), C.R.S. 2025 (providing the
presumptive sentencing ranges for each class of felonies); § 18-1.3- 1004(1)(b), (2), C.R.S. 2025 (outlining the minimum and maximum sentences for felony sex offense that constitute crimes of violence). 6 § 18-1.3-406(1)(d), (2), (6), C.R.S. 2025 (providing mandatory
minimum sentences for crimes of violence, which includes offenses committed using force). 7 § 18-1.3-1006(1)(b), C.R.S. 2025 (providing the parole terms for
class 2, 3, and 4 felony sex offenses). 8 § 18-1.3-1004(2)(a) (outlining probation eligibility for class 2, 3,
and 4 felony sex offenses).
17 timing of parole eligibility” for the equal protection analysis. Dean,
¶ 10 (emphasis added).
¶ 32 Here, the maximum possible period of incarceration as to both
charges is a life sentence in the custody of the DOC. See § 18-1.3-
406(1)(d), C.R.S. 2025. And while the initial sentencing ranges for
the two convictions are both four to twelve years to life, the
aggravated range for a sexual assault (force) conviction is harsher
compared to that for an unlawful sexual contact (force) conviction,
which is already in the aggravated range. See § 18-1.3-
401(1)(a)(V.5)(A), (6), (8)(a), C.R.S. 2025. The parole period for
sexual assault (force) is also harsher than that of unlawful sexual
contact (force), as it is twice as long. See § 18-1.3-1006(3)(a).
¶ 33 While one component — probation eligibility — of the
sentencing scheme for unlawful sexual contact (force) is harsher
than that for a sexual assault (force) conviction, other components
are less harsh. See People v. Nguyen, 900 P.2d 37, 41 (Colo. 1995)
(noting that the supreme court has consistently held that when the
legislature provides the same penalty for different crimes there is no
equal protection violation). And as it relates to probation
specifically, the supreme court has noted that, because probation is
18 an alternative sentence that must be consented to by the defendant,
so long as the defendant remains subject to the same minimum or
maximum statutory sentences, equal protection is satisfied. See
People v. Smith, 2014 CO 10, ¶ 18 n.4; see also People v.
Garberding, 787 P.2d 154, 157 (Colo. 1990) (“Equal protection
requires only that the minimum and maximum sentences imposed
by the statute — not the judge— are the same for all persons
charged with the same or similar offenses; the individual treatment
of each defendant within the limits of the sentence provided is
within the sentencing court’s discretion.”).
¶ 34 Under these circumstances, we cannot say, beyond a
reasonable doubt, that the sentencing scheme for unlawful sexual
contact (force), as compared to that for sexual assault (force), is
unconstitutional, either as applied or facially. See Hicks, 262 P.3d
at 919. Thus, we affirm the district court’s denial of Arrington’s
motions to dismiss and vacate his unlawful sexual contact (force)
charge and conviction.
IV. Sentencing
¶ 35 On cross-appeal, the Attorney General asserts that the district
court erred by sentencing Arrington to concurrent sentences
19 because consecutive sentencing was mandated by statute.9 We
agree that Arrington’s kidnapping offense should have been
consecutively sentenced with his two sex offense convictions.
¶ 36 The district court found that the jury was asked to answer the
question — “Was the person kidnapped also the victim of another
specified crime?” — as part of the kidnapping charge. It reasoned
that because the jury answered this question in the affirmative, this
meant that Arrington’s conduct underlying the charges of unlawful
sexual contact (force) and attempted sexual assault were subsumed
into the kidnapping charge. It also found that the factual evidence
supporting the unlawful sexual contact (force) and attempt to
commit sexual assault charges was identical. Consistent with these
findings, the district court found it was obligated to impose
concurrent sentences.
9 The Attorney General’s cross-appeal is unclear as to whether it
seeks to have all three sentences run consecutively, or whether it contends that Count I (kidnapping) should run consecutively to Counts II (unlawful sexual contact) and III (attempted sexual assault). We conclude that Arrington should be sentenced consecutively for Counts I and II, and concurrently as to Count III.
20 ¶ 37 We review a district court’s application of mandatory
sentencing laws de novo. See People v. Torres, 224 P.3d 268, 277
(Colo. App. 2009).
¶ 38 Unless multiple victims are involved, concurrent sentences
must be imposed “when multiple convictions are based on the same
act or series of acts arising from the same criminal episode, and are
supported by identical evidence.” Id. (emphasis added); see § 18-1-
408(3), C.R.S. 2025. But section 18-1.3-1004(5)(a) requires that
“[a]ny sex offender . . . convicted of one or more additional crimes
arising out of the same incident as the sex offense shall be
sentenced for the sex offense and such other crimes . . .
consecutively rather than concurrently.”
¶ 39 In determining whether convictions were supported by
identical evidence, we look to whether “the acts underlying the
convictions were sufficiently separate.” Thompson v. People, 2020
CO 72, ¶ 60. This inquiry requires us to determine whether “the
separate convictions were based on more than one distinct act and
if so, whether those acts were separated by time and place.” Id.
(quoting Juhl v. People, 172 P.3d 896, 901 (Colo. 2007)). We are to
“focus on the evidence that supported the convictions, not on the
21 evidence necessarily required to prove the elements of those
convictions.” Id. If the evidence can support “no reasonable
inference that the [multiple] convictions were based on acts that
were separated by time or place, then the concurrent sentencing
statute applies.” Torres, 224 P.3d at 277.
¶ 40 Both parties agree that the critical determination for this issue
is whether Arrington’s convictions were supported by identical
evidence. If so, concurrent sentences were required and correctly
imposed; if not, consecutive sentences, as advanced by the Attorney
General, were mandated. Id.; § 18-1-408(3); § 18-1.3-1004(5). The
district court sentenced Arrington concurrently because it
determined that Arrington’s three convictions were supported by
identical evidence. We disagree and therefore remand the case to
the district court for imposition of consecutive sentences with
respect to Arrington’s kidnapping conviction and unlawful sexual
contact (force) conviction. The attempted sexual assault conviction
should be served concurrently. We reach this conclusion for two
reasons.
22 ¶ 41 First, the district court incorrectly determined that the
question posed to the jury relating to the kidnapping meant, for
purposes of its sentencing analysis, that the facts underlying the
unlawful sexual contact (force) and sexual assault convictions were
subsumed into the kidnapping conviction. But we read the
question’s purpose to be determining whether Arrington was
subject to a sentence enhancer, not determining whether another
crime that had been committed as part of the kidnapping was an
element of the offense.
¶ 42 Jury Instruction No. 11 for second degree kidnapping laid out
the elements of that offense. If the jury found that the prosecution
had proved beyond a reasonable doubt that Arrington had
committed second degree kidnapping, then Jury Instruction No. 12
asked the jury the following:
Was the person kidnapped also the victim of another specified crime? (Answer “Yes” or “No”)
The person kidnapped was also the victim of another specified crime only if:
1. the person kidnapped was the victim of the crime of Unlawful Sexual Contact or Criminal Attempt to Commit Sexual Assault.
On the jury verdict form, the jury answered “yes.”
23 ¶ 43 Jury Instruction No. 12 outlined a sentence enhancer that is
not an element of the offense to second degree kidnapping. See
People in Interest of B.D., 2020 CO 87, ¶ 15. In effect, the district
court concluded that the sentence enhancer was necessarily
supported by all of the evidence in the case, as the jury concluded
that L.M. was the victim of another specified crime, requiring it to
consider the evidence underlying the other convictions. And
because, the district court reasoned, the kidnapping conviction
required consideration of all of the evidence in the case, it was
based on identical facts as the other convictions.
¶ 44 This reasoning is not consistent with the case law.
Specifically, sentence enhancers do not necessarily render
consecutive sentencing improper. See People v. Glasser, 293 P.3d
68, 78 (Colo. App. 2011) (affirming consecutive sentences for sexual
assault and kidnapping despite the kidnapping charge being
enhanced because of the sexual assault charge); People v. Jurado,
30 P.3d 769, 772-73 (Colo. App. 2001) (same). While the jury might
have been asked to consider the overall evidence for purposes of
answering Jury Instruction No. 12, this consideration is not the
24 same as a court’s inquiry as to whether consecutive sentencing
applies.
¶ 45 Instead, the court was to determine whether Arrington’s
convictions were supported by identical evidence, requiring it to
focus on “the evidence that supported the convictions, not on the
evidence necessarily required to prove the elements of those
convictions.” Thompson, ¶ 60. And here, the evidence supporting
the kidnapping charge was L.M.’s testimony that Arrington pushed
her into the store’s bathroom from where she had been standing by
the cash register, which was different from the evidence supporting
the other two sexual offense charges — her testimony that
Arrington touched her vaginal area without her consent and tried to
move her pants and underwear. The district court incorrectly
focused its analysis on the sentence enhancer component of
Arrington’s kidnapping conviction instead of analyzing the evidence
presented that supported the underlying conviction.
¶ 46 Second, while Arrington highlights that the attack took place
over a short period of time, just a few minutes, this fact is not
25 dispositive.10 Rather, courts have held that even separate
convictions occurring in relatively quick succession over a short
period of time have been held to be sufficiently separate for
sentencing determinations. See Jurado, 30 P.3d at 773 (affirming
consecutive sentences because, despite the offenses being part of a
continuous course of conduct and sharing some elements of proof,
they were not supported by identical evidence); see also Qureshi v.
Dist. Ct., 727 P.2d 45, 47 (Colo. 1986) (same).
¶ 47 Here, Arrington’s acts were separated by time and place such
that they were sufficiently distinct acts: First, the unlawful sexual
contact and attempted sexual assault occurred in the area behind
the store’s cash register area, then the kidnapping followed in the
store’s bathroom. Even if the events happened close in time and in
place, the sexual offense acts were nonetheless sufficiently distinct
such that they did not share identical evidence with the kidnapping
offense. See Thompson, ¶ 60. But the sexual offense acts were not
10 The parties dispute how long the attack lasted. Arrington claims that it took place in under two minutes, while the Attorney General claims it lasted closer to five or six minutes. The record is unclear on this issue, but any difference is de minimis for purposes of our analysis.
26 sufficiently distinct in time and place such that they support
sentencing Counts II and III consecutively.
¶ 48 Therefore, we conclude that the district court erred by
sentencing Arrington concurrently rather than consecutively and
remand the case to the district court for resentencing so that the
kidnapping conviction runs consecutively with the two sexual
offense convictions.
V. Conclusion
¶ 49 The judgment of conviction is affirmed, but we reverse the
court’s sentencing order and remand the case to the district court
for resentencing so that the kidnapping sentence runs consecutively
with the two sexual offenses’ sentences.
JUDGE PAWAR and JUDGE GOMEZ concur.