The Colorado Supreme Court will hear oral arguments for three cases Dec. 13 which include child hearsay statements and proceedings under Batson v. Kentucky.
The high court will look at whether a forensic interview was inadmissible to evidence because the subject was 15 years old at the time and child hearsay statements are admissible under Colorado Revised Statute 13-25-129(2) if the declarant was under 15 at the time of the statements.
The Colorado Supreme Court will also determine if the state appeals court erred in concluding the sentences for two sex offenses arising out of the same incident and based on identical evidence were required to run concurrently.
Dennis Chirinos-Raudales appealed his conviction and sentence for 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 to the Colorado Court of Appeals. Chirinos-Raudales challenged the admission of the victim’s forensic interview under the child hearsay statute which provides that certain out-of-court statements by a child, not otherwise covered by hearsay exceptions, are admissible.
Court records state the incidents of abuse the victim described occurred before she was age 15, but the interview took place shortly after she turned 15.
The child hearsay statute has one 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 … .”
The prosecution charged Chirinos-Raudales with sexual assault on a child with force (count one); two counts of sexual assault on a child by one in 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).
On appeal, Chirinos-Raudales contended the child hearsay statute is applicable only if the victim was less than 15 when she gave the statement. The appeals court disagreed. Under counts two and four, Chirinos-Raudales was charged with sexual assault on a child by one in a position of trust which violates 18-3-405.3(1). That statute states a person who knowingly subjects someone that is not their spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is less than 18 and the person committing the offense is in a position of trust.
The appeals court wrote then, under one of the statutes Chirinos-Raudales was charged, a child is defined as someone who is less than 18 and in this case, the victim was less than 18 when she gave her statement.
The statute also includes a sentence enhancer if the victim is younger than 15. Since the victim was under 15 at the time of the offense, prosecutors charged Chirinos-Raudales with an enhanced charge. Chirinos-Raudales argued that since he was charged with the sentence enhancer, the definition contained in that specific subsection of the statute controls. Chirinos–Raudales contended since the victim was not under the age of 15 at the time of the interview, her forensic interview was inadmissible as a child hearsay statement.
In this situation, the statute that is subject of the action, according to the appeals court, is 18-3-405.3 which provided the victim is a child if she is under 18. The appeals court added sentence enhancers are not elements of the offense and attach only after the prosecutor proved the defendant committed it.
The appeals court needed to decide whether the age of the child is described in the language establishing the general offense or the age relevant to the specific sentence enhancer with which the defendant is charged.
The appeals court concluded the relevant age is applicable to the general offense, not the sentence enhancer. The appeals court rejected Chirinos-Raudales’ challenge to the admission of the child hearsay.
Chirinos-Raudales also argued the trial court erred for failing to merge the convictions for counts one and three, as well as having consecutive sentences for counts one through three.
Chirinos-Raudales was found guilty on counts two, three, four and five. According to the Court of Appeals, for reasons it cannot discern, the jury wasn’t instructed on count one and didn’t return a verdict on it. However, the trial court entered a judgment of conviction and imposed sentences on all five counts.
The appeals court wrote that since the jury never returned a verdict on count one, rather than merging it with count three, the conviction on count one and the corresponding sentence need to be vacated. The appeals court also found concurrent sentences should be used for counts two and three.
In another case, the Colorado Supreme Court will look at whether the Court of Appeals erred by relying on the Chirinos-Raudales interpretation of the child hearsay statute then strictly construing it as People v. McClure requires.
According to court records, Jose Orellana-Leon is accused of sexually abusing L.V., the child of someone he was dating, from roughly age seven until she was 12. When L.V. was 15 years old, she told her father, her stepmom and a forensic interviewer about the sexual abuse. Orellana-Leon was then charged with sexual assault on a child by one in a position of trust as a pattern of abuse.
On appeal Orellana-Leon, contended the district court erred in admitting L.V.’s statements under the child hearsay statute. Orellana-Leon contended L.V. wasn’t a child for the purposes of the statute when she made the statements, among other arguments. The appeals court disagreed with the contentions and affirmed.
In doing so, the appeals court judgment cited People v. Chirinos-Raudales holding in these circumstances, under the age of 18 is the relevant age.
The Colorado Supreme Court will also determine whether a trial court, when conducting remand proceedings under Batson v. Kentucky and People v. Rodriguez, may consider additional evidence to complete each step of the Batson analysis.
Theodore Madrid was charged with first-degree murder and two counts of child abuse resulting in death in connection to the death of his then-girlfriend’s two-year-old son. Madrid argued the child’s death was an accident, but a jury convicted him as charged. Madrid was sentenced to life without parole for murder followed by concurrent sentences for the child abuse counts.
Madrid appealed his conviction, contending the district court erroneously denied his Batson objection to the prosecution’s peremptory strike of a prospective juror. A division of the appeals court concluded the district court erred when it determined Madrid failed to make a prima facie showing the peremptory strike was based on race. That division of the appeals court then reversed and remanded to the district court to complete the Batson analysis. After remand, the district court concluded there hadn’t been a Batson violation.
Madrid appealed again, contending the district court erred in accepting on remand new race-neutral explanations for the strike the prosecutor didn’t articulate during the Batson challenge during trial.
This time around, the appeals court concluded the district court couldn’t consider new justifications on remand. The judgment of conviction was reversed and remanded to the district court for a new trial.