Peo v. Soriano

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

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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

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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

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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

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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

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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.”

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¶ 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.

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