23CA1765 Peo v Soriano 11-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1765 El Paso County District Court No. 22CR1265 Honorable William B. Bain, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Moises Jesus Soriano,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Defendant-Appellant ¶1 Defendant, Moises Jesus Soriano, appeals the judgment of
conviction entered on a jury verdict finding him guilty of attempted
first degree murder, first degree assault, aggravated robbery, and
six crime of violence sentence enhancers. Soriano contends that
the district court erred by admitting certain evidence and by
imposing consecutive sentences for attempted first degree murder
and aggravated robbery. We affirm Soriano’s judgment of
conviction.
I. Background
¶2 In February 2022, Yoel Hernandez Fresno drove to an
apartment complex in Colorado Springs to visit a friend. Fresno
pulled into a spot about five feet away from where Soriano, an
acquaintance, had parked his car. Soriano was standing outside
his car, and another person1 was sitting in the passenger seat.
¶3 Fresno stepped out of his car and approached Soriano with his
hand outstretched to greet him. Soriano shook Fresno’s hand,
pulled him close, and said, “Oh, I know what you did.” The other
person got out of Soriano’s car, and the two flanked Fresno.
1 Fresno did not recognize the other person, and the police never
identified him.
1 Soriano took out a knife and slashed and stabbed Fresno from the
front while the other person grabbed Fresno from behind and
stabbed him in the back. At some point, Fresno tried to use his
phone to call the police, but the assailants threatened to “pop” him
and took his phone.
¶4 Soriano and the other person stabbed Fresno over ten times,
inflicting serious wounds to his face, head, throat, chest, and back.
They also punctured one of Fresno’s lungs. Police and paramedics
responded to a call from a resident of the apartment complex who
reported the attack. Immediately after the assault, Fresno told the
paramedics that he did not know who had attacked him. Later,
Fresno told police that Soriano had stabbed him, but he was unable
to describe the other assailant in any detail.
¶5 The prosecution charged Soriano with attempted first degree
murder, first degree assault, aggravated robbery, and six crime of
violence sentence enhancers. A jury convicted him as charged. The
district court merged the attempted murder and assault convictions
and sentenced Soriano to consecutive prison terms of twenty years
for attempted murder and ten years for aggravated robbery.
2 II. Evidentiary Rulings
¶6 Soriano contends that the district court erred by (1) admitting
an audio clip from a detective’s interview of Fresno and (2) allowing
a police officer to testify about general victim behavior. We perceive
no reversible error.
A. Standard of Review
¶7 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. The Audio Clip
¶8 Soriano contends that the district court erred by admitting an
audio clip from a detective’s interview of Fresno as a prior
inconsistent statement under section 16-10-201, C.R.S. 2025.
Based on our review of the record, however, the court did not admit
the clip under section 16-10-201 but instead because defense
counsel opened the door to it. We conclude that the court did not
abuse its discretion by admitting the evidence on that basis.
3 1. Additional Background
¶9 During direct examination, Fresno testified that the assailants
told him to put his hands up and then started stabbing him.
During cross-examination, defense counsel had Fresno listen to a
four-minute clip from his thirty-minute interview with Detective
Aulino, the lead investigator. Defense counsel had Fresno use
headphones so the jury could not hear the audio clip. Counsel then
asked, “At no point did you tell Detective Aulino that you had to
hold your arms up?” Fresno responded that he “didn’t rehearse the
story” but that “it’s the same story every time, just some things
don’t get told in every story. . . . I mean, the story is still the same
thing.” Referencing the jury, Fresno then asked, “Are you going to
play that out loud for them?” Defense counsel again asked whether
Fresno had heard himself say that he had to hold his hands up on
the audio, and Fresno responded, “No, I did not mention it there.”
¶ 10 During redirect examination, the prosecutor moved to admit
and play the four-minute audio clip for the jury “under the rule of
completeness” and section 16-10-201. Defense counsel objected.
The district court overruled the objection, reasoning that defense
counsel had “raised the nature of the discussion enough that the
4 jury [wa]s entitled to [hear] this four or five-minute [audio]” and
“whatever statement was made in context or not made in context.”2
The court later added, “[T]he issue of what [Fresno] didn’t say to the
detective opened the door for at least a couple of minutes of” the
audio. (Emphasis added.)
2. The District Court Did Not Err by Admitting the Audio Clip
¶ 11 Soriano contends that the district court erred by admitting the
audio clip under section 16-10-201 because it did not contain a
statement that was inconsistent with Soriano’s trial testimony. But,
as noted, the court did not admit the audio clip as a prior
inconsistent statement, even though the prosecutor cited section
16-10-201 when moving for its admission. Instead, the court ruled
that defense counsel had opened the door to the audio clip’s
admission. We conclude that the court did not abuse its discretion
by admitting the audio clip on that basis. See People v. Aarness,
150 P.3d 1271, 1277 (Colo. 2006) (an appellate court may affirm a
2 To the extent the court admitted the audio clip under CRE 106 or
the “rule of completeness,” Soriano does not challenge that part of the court’s ruling. See People v. Archer, 2022 COA 71, ¶ 42 (appellate court must affirm when a defendant does not challenge each alternative ground for admitting evidence). But because the record is not clear on this point, we elect not to affirm on this basis.
5 trial court’s ruling on any ground supported by the record); see also
People v. Pernell, 2014 COA 157, ¶ 36 (reversal was not required
when the evidence was admissible on an alternative basis), aff’d on
other grounds, 2018 CO 13.
¶ 12 “The concept of ‘opening the door’ represents an effort by
courts to prevent one party in a criminal trial from gaining and
maintaining an unfair advantage by the selective presentation of
facts that, without being elaborated or placed in context, create an
incorrect or misleading impression.” Golob v. People, 180 P.3d
1006, 1012 (Colo. 2008) (citation omitted). If one party opens the
door, the other party may introduce “otherwise inadmissible
rebuttal evidence,” but “only to the extent necessary to remove any
unfair prejudice which might otherwise have ensued from the
original evidence.” People v. Cohen, 2019 COA 38, ¶ 23 (quoting
United States v. Martinez, 988 F.2d 685, 702 (7th Cir. 1993)).
¶ 13 Defense counsel had Fresno listen to an audio clip the jury
could not hear and then asked him questions that were designed to
impeach his credibility. Defense counsel pressed Fresno to admit
that he had not told the detective during the recorded interview that
the assailants told him to raise his hands. The selective
6 presentation of that omission left the jury with a misleading
impression that Fresno gave a different account of the assault than
the one to which he was testifying and, as the People argue,
“embellished the description he presented at trial.”
¶ 14 In reality, the audio clip largely tracked Fresno’s testimony,
except for the detail about raising his hands. As the district court
explained, given how the evidence was presented, the jury was
entitled to “some context as to . . . when this statement was not
made.” See Golob, 180 P.3d at 1012; cf. People v. Eppens, 979 P.2d
14, 22 (Colo. 1999) (A victim’s prior consistent statements were
admissible for rehabilitation because a defendant “should not be
permitted to ‘have his cake and eat it too’ by referring to select
portions of [a victim’s] prior statement in order to impeach [the
victim], but leaving out large sections of the statement which
demonstrate consistency.” (citation omitted)).
¶ 15 The court admitted only four minutes of the thirty-minute
interview, so the otherwise inadmissible rebuttal evidence was
limited to only what was necessary to place in context the evidence
elicited by defense counsel. See Cohen, ¶ 23; see also Venalonzo v.
People, 2017 CO 9, ¶ 44 (the trial court did not err by admitting an
7 officer’s otherwise inadmissible testimony when defense counsel
opened the door on cross-examination, the officer’s testimony on
redirect only put the statements into context, and the testimony did
not exceed the scope of cross-examination). The audio clip was also
largely cumulative of Fresno’s testimony — there was little new or
controversial content in the short clip. See People v. Warner, 251
P.3d 556, 564 (Colo. App. 2010) (“Admission of cumulative evidence
is a matter within the sound discretion of the trial court.”); cf.
Eppens, 979 P.2d at 23 (noting that a prior consistent statement
properly admitted for rehabilitation “was merely repetitive of [the
victim’s] own testimony” and not “used to fill in significant gaps in
the details of [the victim’s] in-court testimony”). Additionally, both
Fresno and the interviewing detective testified and were available to
be cross-examined about the audio clip.
¶ 16 On this record, we perceive no abuse of discretion by the
district court in allowing the prosecution to correct any misleading
impression that defense counsel’s questions created by playing the
brief audio clip. See Zapata, ¶ 25; Liggett, ¶ 16.
¶ 17 Even so, Soriano contends that the probative value of the
audio clip was substantially outweighed by the danger of
8 unfair prejudice under CRE 403 because it (1) bolstered Fresno’s
testimony and (2) contained speculative statements about the
assailants’ motive for taking Fresno’s phone. Although defense
counsel argued to the district court that the audio clip was “just
bolstering [Fresno’s] statements,” they did not argue that it
contained speculative statements or that it should be excluded
under CRE 403. Regardless, we perceive no error.
¶ 18 CRE 403 strongly favors the admission of relevant evidence.
People v. Dist. Ct., 869 P.2d 1281, 1286 (Colo. 1994). Still, relevant
evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” CRE 403.
Unfair prejudice refers to “an undue tendency on the part of
admissible evidence to suggest a decision made on an improper
basis.” Dist. Ct., 869 P.2d at 1286.
¶ 19 Soriano argues that many statements in the audio clip were
inadmissible under CRE 403 simply because they were bolstering.
We acknowledge that out-of-court statements cannot be admitted
solely to bolster a witness’ trial testimony. People v. Allgier, 2018
COA 122, ¶ 44. But the concept of opening the door allows for the
admission of otherwise inadmissible evidence, and bolstering
9 testimony is the type of evidence that can be admitted when the
defense opens the door to it. See People v. Renfro, 117 P.3d 43,
46-47 (Colo. App. 2004) (concluding that the trial court did not
abuse its discretion by admitting the bolstering testimony of a
police officer when defense counsel opened the door on
cross-examination); People v. Davis, 312 P.3d 193, 197 (Colo. App.
2010) (Bolstering testimony “is permitted where the defense opens
the door by suggesting that a witness’ statement cannot be
substantiated.”), aff’d, 2013 CO 57. Soriano does not explain how
the bolstering effect of the statements created a danger of unfair
prejudice that substantially outweighed their probative value for
placing Fresno’s alleged inconsistency by omission in context. See
CRE 403.
¶ 20 We are similarly unpersuaded by Soriano’s argument that the
audio clip should have been excluded under CRE 403 because it
contained speculative statements. At trial, Fresno testified that he
had his phone and tried to call the police, but then the assailants
took his phone. In the audio clip, Fresno told the detective, “They
wanted my phone because, while I was like stumbling on my feet
about to fall down, I said I was going to call the cops.” Fresno drew
10 the same inference from the circumstances of the assault as any
reasonable juror would have drawn from Fresno’s trial testimony,
and it was an appropriate inference for a lay person to draw. See
People v. Jones, 907 P.2d 667, 668-69 (Colo. App. 1995) (Under
CRE 701, “if the witness had sufficient opportunity to observe the
person and to draw a rational conclusion about the person’s state of
mind,” then “[a] lay witness may state an opinion about another
person’s motivation or intent.”).
¶ 21 Fresno also testified at trial without objection that when the
altercation began, Soriano and the other person “got in between me
and between both of the cars. . . . [T]here was one to my every
side. . . . So they were trying to pin me down.” When describing
the same moment in the audio clip, Fresno also said, “I’m guessing
their plan was to get me right in between the cars so there’s like
very little visibility.” We tend to agree that this statement had
minimal probative value and was somewhat speculative — indeed, it
begins with the words “I’m guessing.” Still, Soriano fails to explain
how this one statement made the four-minute audio clip so unfairly
prejudicial as to be inadmissible under CRE 403.
11 ¶ 22 Thus, we conclude that the district court did not abuse its
discretion by not excluding the audio clip under CRE 403. See
Zapata, ¶ 25; Liggett, ¶ 16.
C. The Police Officer’s Testimony
¶ 23 Soriano contends that the district court erred by allowing a
police officer to testify regarding how victims generally behave
because it was not relevant under CRE 401 and was unfairly
prejudicial under CRE 403. We perceive no reversible error.
¶ 24 To support his unfair prejudice argument, Soriano contends
that the testimony was (1) expert testimony in the guise of lay
testimony and (2) an improper opinion on witness credibility. These
latter two arguments are unpreserved and subject to plain error
review. See Hagos v. People, 2012 CO 63, ¶ 14 (we review
unpreserved contentions for plain error). Although defense counsel
raised CRE 403 at trial, they did not argue that the testimony was
improper lay opinion or commentary on credibility. Instead,
defense counsel said, “I think it’s confusing and I think it’s
prejudicial.” We reject Soriano’s attempt to shoehorn these new
arguments into his counsel’s generic CRE 403 objection. See
Martinez v. People, 2015 CO 16, ¶ 14 (To preserve an issue, a party
12 must make an objection “specific enough to draw the trial court’s
attention to the asserted error.”).
1. Additional Background
¶ 25 The jury submitted two questions to Officer Brock Lofgren, one
of the first responders. The district court overruled defense
counsel’s relevance and CRE 403 objections to the questions. It
then asked Officer Lofgren, “From your professional experience or
training, how common is it for a victim to respond ‘I don’t know’
when asked to recall people or events, including their assailant,
immediately following an assault?” Officer Lofgren responded, “In
my experience, extremely common. A lot of times, they haven’t
decided whether they want the person to be in trouble or not[,] or
they just are in shock still and can’t remember a lot of what just
happened.” The court next asked, “Is it typical they are later able to
recall the events or assailants from the assault with certainty?” The
court clarified, “Only if you have a basis of knowledge based on
your experience can you answer that question.” Officer Lofgren
responded, “Yes. Obviously, I’m not an expert on psychology, but I
know from my own experiences and the experience of other victims
13 I’ve talked to, a lot of times after a traumatic incident you remember
a lot shortly after[,] when at the time couldn’t recall anything.”
2. Relevance
¶ 26 As best we understand, Soriano contends that Officer
Lofgren’s testimony was not relevant because it was too general and
“tantamount to victim impact evidence.” We disagree.
¶ 27 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. Officer Lofgren’s testimony was relevant
to explain why Fresno did not, or was unable to, identify Soriano
immediately after the attack even though Fresno knew Soriano and
definitively identified him as the assailant later. The identity of the
assailant was a material fact, and the officer’s testimony made
Fresno’s identification of Soriano as the assailant more probable
than without it. See id.; People v. Garcia, 179 P.3d 250, 254 (Colo.
App. 2007) (Evidence must be material and relevant to be
admissible; material evidence “must relate to a ‘fact that is of
consequence to the determination of the action.’” (citation omitted)).
And the evidence was relevant even though Officer Lofgren did not
14 say that Fresno’s behavior was consistent with the behavior he had
described because the jury could draw that conclusion for itself.
¶ 28 We are not persuaded by Soriano’s argument that the officer’s
testimony was irrelevant victim impact evidence. True, victim
impact evidence that shows only “the effect of a crime on a [victim
or the] victim’s family often has no tendency to prove whether a
particular defendant committed a particular criminal act against a
particular victim.” People v. Martinez, 2020 COA 141, ¶ 33 (quoting
State v. Graham, 650 S.E.2d 639, 645 (N.C. Ct. App. 2007)). But
victim impact evidence may be relevant to determine “whether the
defendant committed the crime for which [they were] charged” and
may be admissible to show “the context or circumstances of the
crime itself.” Id. at ¶¶ 33-34 (citation omitted). Even if we assume
that Officer Lofgren’s testimony included victim impact evidence,
even though it was not specific to the victim in this case, it was still
relevant because it helped explain why Fresno might not have been
able to identify Soriano right away. See id.
15 3. Expert Testimony
¶ 29 Soriano next contends that Officer Lofgren’s testimony was
expert testimony erroneously admitted in the guise of lay testimony.
We conclude that any error was not plain.
¶ 30 “[T]he critical factor in distinguishing between lay and expert
testimony is the basis for the witness’s opinion.” Venalonzo, ¶ 22.
We “must consider whether the testimony could be based on an
ordinary person’s experience or knowledge.” People v. Murphy,
2021 CO 22, ¶ 21. If so, it is proper lay opinion testimony if it
meets the requirements of CRE 701. See id. at ¶¶ 17, 20. But if a
“witness provides testimony that could not be offered without
specialized experiences, knowledge, or training, then the witness is
offering expert testimony” under CRE 702. Venalonzo, ¶ 2.
¶ 31 “Police officers regularly, and appropriately, offer testimony
under CRE 701 based on their perceptions and experiences.”
People v. Tallwhiteman, 124 P.3d 827, 832 (Colo. App. 2005); accord
Murphy, ¶ 21. But an officer’s testimony “becomes objectionable
when what is essentially expert testimony is improperly admitted
under the guise of lay opinions.” People v. Stewart, 55 P.3d 107,
123 (Colo. 2002).
16 ¶ 32 As a threshold matter, we agree with Soriano that Officer
Lofgren’s testimony was expert testimony. The juror questions
sought answers based on Officer Lofgren’s “professional experience
or training,” the court told Officer Lofgren he could only answer the
second question if he had the requisite “experience,” and Officer
Lofgren phrased his answers in terms of his experience as a police
officer working with assault victims. More importantly, how often
assault victims are unable to immediately identify their assailants
yet later recall them with reasonable certainty is knowledge “beyond
the realm of common experience.” Venalonzo, ¶ 22. Although
police officers may offer lay testimony based on their own
perceptions and observations, Murphy, ¶ 21, Officer Lofgren’s
testimony was not based on “an ordinary person’s experiences or
knowledge,” Venalonzo, ¶ 23. Thus, we conclude that Officer
Lofgren’s testimony was expert testimony and that the court erred
by admitting it as lay testimony.
¶ 33 Even so, we conclude that any error in admitting the officer’s
testimony was not plain. Plain error is error that is both obvious
and substantial, such that it “undermined the fundamental fairness
of the trial itself so as to cast serious doubt on the reliability of the
17 judgment of conviction.” Hagos, ¶ 14 (citation omitted). Assuming,
without deciding, that Officer Lofgren’s testimony was obviously
expert testimony, we nonetheless conclude that any error in
admitting it was not substantial.
¶ 34 Officer Lofgren testified that he had been a patrol officer since
2014, primarily responded to service calls, and could respond “from
[his] own experiences and the experience of other victims [he had]
talked to.” Because the officer likely would have been qualified to
testify as an expert had he been offered as one, any error in
admitting his answers to the jurors’ questions did not undermine
the fundamental fairness of the proceeding. See id.; People v.
Conyac, 2014 COA 8M, ¶¶ 66-67 (assuming, without deciding, that
the trial court improperly allowed an officer to give expert testimony
but concluding there was no plain error when “the officer was
qualified to offer such expert testimony given his training and
experience”); People v. Malloy, 178 P.3d 1283, 1288 (Colo. App.
2008) (concluding, without deciding whether an officer’s testimony
was lay or expert, that there was no plain error because the officer
was amply qualified based on his training and experience).
Moreover, Fresno separately testified corroboratively that he was
18 unable to identify Soriano immediately after the stabbing because
he was scared, severely wounded, and “fighting for [his] life,” which
is a commonsense reaction within the purview of a lay witness. See
Stewart, 55 P.3d at 124-25 (officer’s improperly admitted expert
testimony was harmless in part because it was corroborated by
other testimony); People v. McFee, 2016 COA 97, ¶ 90 (“When
evidence is merely cumulative, any error in its admission is
harmless.”). The testimony was also brief and not mentioned again.
Thus, we perceive no plain error. See Hagos, ¶ 14.
4. Opinion on Witness Credibility
¶ 35 Soriano next contends that Officer Lofgren’s testimony was an
improper opinion on Fresno’s credibility. We disagree.
¶ 36 In Colorado, one witness may not opine on the veracity of
another witness. Murphy, ¶ 36; Davis v. People, 2013 CO 57, ¶ 15.
However, an expert may testify about the typical behavior of victims
if it helps the jury understand a victim’s counterintuitive behavior.
People v. Relaford, 2016 COA 99, ¶ 28; see also People v. Glasser,
293 P.3d 68, 78 (Colo. App. 2011) (“[E]xperts may testify concerning
whether a victim’s behavior or demeanor is consistent with the
typical behavior of victims of abuse.”); People v. Whitman, 205 P.3d
19 371, 383 (Colo. App. 2007) (expert testimony about general
characteristics and behaviors was not testimony about the veracity
of the witness). “While such ‘testimony may incidentally give rise to
an inference that a victim is or is not telling the truth about the
specific incident,’ ‘this fact alone is insufficient to deny admission of
the evidence, because expert testimony generally tends to bolster or
attack the credibility of another witness.’” Relaford, ¶ 30 (quoting
People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986)).
¶ 37 Officer Lofgren’s testimony helped the jury understand why
victims may not immediately identify an assailant but are likely to
recall specific details later, behavior that may otherwise seem
puzzling. See id. at ¶ 28. That his testimony incidentally allowed
the jury to infer that Fresno was telling the truth did not make the
testimony inadmissible. See id. at ¶ 30. Officer Lofgren did not
even say that Fresno’s behavior was consistent with the general
victim behavior he had described. Thus, we conclude that Officer
Lofgren did not improperly opine on Fresno’s veracity.
5. CRE 403
¶ 38 Lastly, Soriano contends that Officer Lofgren’s testimony was
inadmissible under CRE 403 because its probative value was
20 substantially outweighed by the danger of unfair prejudice or
misleading the jury. We disagree.
¶ 39 Relevant evidence may be excluded if its probative value is
substantially outweighed by, among other things, the danger of
unfair prejudice or misleading the jury. CRE 403. When reviewing
a district court’s exercise of discretion in performing the balancing
required by CRE 403, we afford “the evidence the maximum
probative value attributable by a reasonable fact finder and the
minimum unfair prejudice to be reasonably expected.” People v.
Gibbens, 905 P.2d 604, 607 (Colo. 1995).
¶ 40 Soriano argues that the probative value of the officer’s
testimony was minimal because it addressed victims of assault
generally rather than Fresno specifically. But for that same reason,
the risk of unfair prejudice was also minimal. As noted, Officer
Lofgren was qualified to answer questions about how victims
behave, and he did not give an improper opinion on Fresno’s
credibility. Soriano does not otherwise explain how the evidence
was unfairly prejudicial, see Dist. Ct., 869 P.2d at 1286, or
misleading. Thus, we conclude that the district court did not abuse
21 its discretion by striking the CRE 403 balance in favor of allowing
Officer Lofgren to answer the jury’s questions. See id.
III. Sentencing
¶ 41 Soriano contends that the district court erred by sentencing
him consecutively for attempted first degree murder and aggravated
robbery. We disagree.
A. Standard of Review and Applicable Law
¶ 42 “We review the trial court’s decision to impose consecutive
sentences for an abuse of discretion.” Chirinos-Raudales v. People,
2023 CO 33, ¶ 23. A court abuses its discretion if it misapplies the
law or if its ruling is manifestly arbitrary, unreasonable, or unfair.
Id. A trial court generally has “the discretion to impose either
concurrent or consecutive sentences,” but that discretion may be
limited by statute. Juhl v. People, 172 P.3d 896, 899 (Colo. 2007).
¶ 43 As relevant here, section 18-1.3-406(1)(b), C.R.S. 2025,3
mandates consecutive sentences for “a person convicted of two or
more separate crimes of violence arising out of the same
3 Section 18-1.3-406, C.R.S. 2025, was amended in 2023 to move
the quoted language from subsection (1)(a) to (1)(b). See Ch. 297, sec. 1, § 18-1.3-406(1)(a)-(b), 2023 Colo. Sess. Laws 1778-79. The amendment did not substantively alter this language.
22 incident.” But section 18-1-408(2)-(3), C.R.S. 2025, mandates
concurrent sentences for multiple convictions that are “based on
the same act or series of acts arising from the same criminal
episode” and “supported by identical evidence.” See also Schneider
v. People, 2016 CO 70, ¶ 22 (“[T]he phrase ‘arising out of the same
incident’ in section 18-1.3-406 was not intended to convey any
meaning different from ‘arising from the same criminal episode’ in
section 18–1–408.”).
¶ 44 A trial court is required to impose concurrent sentences under
section 18-1-408 “only if the evidence supports no other conclusion
than that the charges are based on identical evidence.” Thompson
v. People, 2020 CO 72, ¶ 61 (quoting People v. Muckle, 107 P.3d
380, 383 (Colo. 2005)). In other words, “the mere possibility that
identical evidence may support two convictions is not sufficient” to
require concurrent sentences. Juhl, 172 P.3d at 900.
¶ 45 To determine whether convictions are based on identical
evidence, courts look at “whether the charges result from the same
act, so that the evidence of the act is identical, or from two or more
acts fairly considered to be separate acts, so that the evidence is
different.” Id. at 902. When one criminal charge is “logically
23 separated” from the act that forms the basis of another charge, the
evidence is not identical. Id.
B. The District Court Did Not Err by Sentencing Soriano to Consecutive Sentences
¶ 46 Soriano contends that the district court erred by sentencing
him consecutively because (1) it misapplied the law by focusing on
the elements of the charged offenses rather than the evidence
supporting each conviction, and (2) the evidence does not support a
finding that the convictions were based on sufficiently separate
acts. We are not persuaded.
¶ 47 As to Soriano’s first contention, the district court found “that
the aggravated robbery evidence [was] different from the first degree
attempted murder evidence in that the taking of the phone and the
wallet [wa]s additional evidence that d[id] not play any part in the
consideration of attempted murder in the first degree.” Based on
this articulated rationale, the court did not focus on the elements of
attempted first degree murder or aggravated robbery but instead
considered the evidence supporting each conviction, reasoning that
there were distinct acts underlying the convictions. Thus, we
24 conclude that the court did not misapply the law as Soriano argues.
See Chirinos-Raudales, ¶ 23.
¶ 48 We further conclude that the court did not err by determining
that the attempted first degree murder and aggravated robbery were
not based on identical evidence. It is undisputed that the stabbing
and the taking of Fresno’s cell phone were two distinct acts. And
“[t]he mere fact that the offenses took place during one continuous
criminal episode does not establish that they were supported by
identical evidence.” People v. Jurado, 30 P.3d 769, 773 (Colo. App.
2001). Instead, the evidence that the assailants attempted to
murder Fresno by stabbing him is distinct from the evidence that
the assailants robbed him by threatening him and taking away his
phone. See Muckle, 107 P.3d at 383 (the defendant’s convictions for
manslaughter and first degree assault were sufficiently separate
when the defendant’s first shot hit the victim in the abdomen and
the second shot hit the back of the victims’ arm while he was
moving away); Qureshi v. Dist. Ct., 727 P.2d 45, 46-47 (Colo. 1986)
(the defendant’s convictions for first degree assault and attempted
manslaughter were sufficiently separate when the defendant
25 attacked the victim by stabbing her in the abdomen in the kitchen
and then attempting to stab her in the throat in the bathroom).
¶ 49 We are not persuaded otherwise by Soriano’s argument that
these distinct acts were not “separated by time and place.” Juhl,
172 P.3d at 901. Colorado case law is not particularly clear about
what it means for acts to be “separated by time and place.” Id. The
parties do not cite, and we are not aware of, any reported decision
defining the requirement beyond its plain language. And we find it
difficult to discern a principled distinction between how courts have
applied the requirement that would help animate the phrase.
¶ 50 For example, in People v. O’Shaughnessy, a division of this
court concluded that the trial court erred by imposing consecutive
sentences for attempted murder, attempted aggravated robbery,
and second degree assault. 275 P.3d 687, 697 (Colo. App. 2010),
aff’d on other grounds, 2012 CO 9. In that case, the defendant
approached the victim with a knife as she finished loading groceries
into her van and told her to get inside. Id. at 690. The victim sat in
the driver’s seat but turned to kick the defendant as he began
stabbing her with the knife. Id. The defendant then demanded
money, the victim said she had none and turned for her purse, and
26 the defendant left. Id. In reversing the consecutive sentences, the
division reasoned that “all three offenses were based on identical
evidence and occurred in a single criminal episode lasting less than
sixty seconds.” Id. at 697.
¶ 51 In contrast, in People v. Bass, a division of this court affirmed
the trial court’s decision to impose consecutive sentences for
attempted robbery of an at-risk person and use of a stun gun. 155
P.3d 547, 554 (Colo. App. 2006). In that case, the defendant
approached the seventy-seven-year-old victim from behind as she
neared her car in a mall parking lot, spun her around, and used a
stun gun on her stomach. Id. at 550. The defendant then pushed
the victim to the ground and used the stun gun on her back while
attempting to steal her purse. Id. After failing to remove the purse
from the victim’s arm, the defendant fled in a waiting car. Id.
¶ 52 In affirming the consecutive sentences, the division reasoned
that evidence of the defendant pushing the victim to the ground was
sufficient to prove the attempted robbery; “[c]onsequently, any
additional evidence presented regarding the stun gun use could
have been used by the jury as evidence of [the defendant’s]
continued attempts to steal the purse and, thus, could constitute a
27 separate criminal offense.” Id. at 554. The division concluded that
“the acts were sufficiently distinguishable from each other so as to
form the basis of the two counts.” Id.
¶ 53 Neither O’Shaughnessy nor Bass analyzed whether the
distinct acts supporting the defendants’ multiple convictions were
separated by time and place. And despite the parties’ attempts to
distinguish them, we see little daylight between these two cases
that would justify their opposite results.
¶ 54 When the acts underlying separate charges are the same type
of act — for example, two shots fired from a gun or two stabs with a
knife — it makes sense to require that the acts not only be distinct
but also be separated by time and place to sustain consecutive
sentences. But here, the stabbing can be “logically separated” from
the taking of a cell phone, Juhl, 172 P.3d at 902, so the evidence
supporting each charge is not identical, notwithstanding that the
acts took place during a single criminal episode, see Jurado, 30
P.3d at 773. See Muckle, 107 P.3d at 383; Qureshi, 727 P.2d at
46-47; cf. Juhl, 172 P.3d at 902 (“Unlike the cases we have
previously addressed regarding identical evidence, where there were
two shots fired at different times or where two attacks occurred in
28 different places, the act that was the basis of [the defendant]’s first
degree assault conviction cannot be logically separated from the act
that formed the basis of the vehicular assault conviction.”).
¶ 55 The record also supports a conclusion that the stabbing was
complete before the assailants took Fresno’s cell phone such that
the acts were “separated by time and place.” Juhl, 172 P.3d at 901.
Fresno testified that after the assailants surrounded him, Soriano
took out a knife and stabbed him. At some point, Fresno tried to
call the police. He said that his face had been slashed and “blood
was gushing,” so he could not see, but he heard the assailants say
they were going to “pop” him if he did not give up his phone. He
said the assailants took his phone from his hand.
¶ 56 In the admitted audio clip of his interview with Detective
Aulino, Fresno explained that “after [he] got stabbed,” he was
“stumbling on [his] feet about to fall down” and said he was going to
call the police. The assailants screamed, “Give me your phone.”
Fresno said he was in shock but tried to grab his phone, and the
assailants said, “Hurry up before I pop you.” Fresno gave the
assailants his phone “because [he] didn’t want to get stabbed
anymore.”
29 ¶ 57 Notably, Fresno did not testify that Soriano stabbed him while
taking away his phone or to facilitate taking away his phone. And
there is no evidence that Soriano stabbed Fresno again once Fresno
pulled out his phone or afterward when Fresno was stumbling or
had fallen to the ground. From this record, it is reasonable to infer
that the attempted first degree murder was over before the
aggravated robbery began. And if such an inference is possible,
concurrent sentences are not required. See Thompson, ¶ 63 (only
when the evidence “supports no other conclusion” than that the
convictions are based on identical evidence are concurrent
sentences required); Juhl, 172 P. 3d 900 (the “mere possibility” that
the convictions are based on identical evidence is not enough to
require concurrent sentences).
¶ 58 Accordingly, we conclude that the district court did not err by
imposing consecutive sentences. See Chirinos-Raudales, ¶ 23.
IV. Disposition
¶ 59 We affirm Soriano’s judgment of conviction and sentences.
JUDGE DUNN and JUDGE SCHOCK concur.