Peo v. Arrington

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.

A. Additional Facts

¶ 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.

B. Standard of Review and Applicable Law

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.

C. Analysis

¶ 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

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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.

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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.

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