20SC399 - Rojas v. People ( 2022 )

 Applying this holding to the case before it, the supreme court concludes that
the challenged evidence is an extrinsic act that implicates the defendant’s
character, and its admissibility is therefore governed by CRE 404(b) and Spoto. But
because the trial court admitted the evidence under the doctrine of res gestae, it
didn’t conduct a CRE 404(b) analysis and didn’t provide the requisite procedural
safeguards. This constituted error. And because the error was not harmless, the
judgment of the court of appeals, which affirmed the defendant’s convictions, is
reversed, and the case is remanded to the trial court for a new trial.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2022 CO 8Supreme Court Case No. 20SC399
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA126
Petitioner:
Brooke E. Rojas,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
February 21, 2022
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Rachel K. Mercer, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Paul Koehler, Assistant Attorney General
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE
MÁRQUEZ, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR
joined.
CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER,
concurred in the judgment only.
JUSTICE HOOD delivered the Opinion of the Court.
¶1 Today, we discard a troublesome relic from Colorado’s common law of
evidence: the res gestae doctrine.
¶2 Although it has morphed over time, the res gestae doctrine these days is
often used as a shortcut for admitting character evidence about criminal
defendants. While we seek to ensure that defendants are tried for the crimes with
which they’ve been charged and not for seeming to have a propensity to engage
in criminal conduct, “[c]riminal occurrences do not always take place on a sterile
stage.” People v. Lobato, 530 P.2d 493, 496 (Colo. 1975). So, res gestae
evidence—septic though it sometimes may be—has been admitted because it is
“linked in time and circumstances to the charged crime” or “is necessary to
complete the story of the crime for the jury.” Zapata v. People, 2018 CO 82, ¶ 58,
428 P.3d 517, 530 (quoting People v. Skufca, 176 P.3d 83, 86 (Colo. 2008)); People v.
Quintana, 882 P.2d 1366, 1373 (Colo. 1994). In short, we have treated res gestae
evidence, in various ways, as intrinsic to the charged offenses and therefore not
subject to the rules limiting the admissibility of extrinsic, uncharged misconduct
evidence. But because res gestae is so ill-defined, such uncharged misconduct
evidence too often dodges the rules and slips into cases without the requisite
scrutiny.
2
¶3 It is time for us to bury res gestae. This court’s adoption of the Colorado
Rules of Evidence more than four decades ago should have rendered the res gestae
doctrine obsolete. Under the Rules, if evidence is probative of a material fact, then
it is relevant and presumptively admissible. CRE 401, 402. As a general matter,
only when the probative value of relevant evidence is substantially outweighed
by the danger of unfair prejudice does it need to be excluded. CRE 403. And
uncharged misconduct evidence that meets certain requirements can be admitted
to show, for example, that a defendant had the motive, opportunity, or intent to
commit the charged offense. CRE 404(b). By continuing to rely on res gestae as a
standalone basis for admissibility and allowing the vagueness of res gestae to
persist next to these more analytically demanding rules of relevancy, we have
created a breeding ground for confusion, inconsistency, and unfairness.
¶4 Therefore, we join other jurisdictions that have abandoned this always-
nebulous and long-superfluous doctrine. In the case at hand, our decision to
abolish the res gestae doctrine in criminal cases prompts us to reverse the
judgment of the court of appeals and remand for a new trial.1
1 Whether res gestae should survive in civil actions, where it crops up far less
frequently, is not before us. Therefore, we pass no judgment on that issue in this
opinion.
3
I. Facts and Procedural History
¶5 This is the second time we have reviewed this case. See People v. Rojas,
2019 CO 86M, 450 P.3d 719 (“Rojas I”). Brooke Rojas was convicted of two counts
of theft based on her improper receipt of food stamp benefits.
¶6 Rojas initially applied for food stamp benefits from the Larimer County
Department of Human Services (the “Department”) in August 2012 when she had
no income. She received a recertification letter in December, which she submitted
in mid-January 2013, indicating that she still had no income. And although she
had not yet received a paycheck when she submitted the recertification letter,
Rojas had started a new job on January 1.
¶7 Rojas continued receiving food stamp benefits every month until July, when
she inadvertently allowed them to lapse. She reapplied in August 2013. Although
still working, Rojas reported that she had no income. The Department checked
Rojas’s employment status in connection with the August application and learned
that she was making about $55,000 a year (to support a family of seven). The
Department determined that Rojas had received $5,632 in benefits to which she
was not legally entitled.
¶8 The prosecution charged Rojas with two counts of theft under
section 18-4-401(1)(a), C.R.S. (2021). The first count was for the benefits she
4
received between February 1, 2013, and June 4, 2013; the second count was for the
benefits she received between June 5, 2013, and July 31, 2013.2
¶9 At trial, Rojas’s defense was that she lacked the requisite culpable mental
state—she didn’t knowingly deceive the government; she just misunderstood the
forms. The prosecution’s theory was that Rojas’s misstatements on the January
recertification form were not an oversight but rather a knowing attempt to receive
benefits to which she wasn’t legally entitled.
¶10 Before trial, Rojas objected to the prosecution’s proposed admission of the
August 2013 application because it exceeded the time period of the charged
offenses and didn’t lead to the receipt of any benefits. The prosecution countered
that the application was admissible as res gestae evidence—to show how the
investigation began—and as evidence of specific intent. The court found it
relevant as circumstantial evidence of Rojas’s mental state.
¶11 On the morning of trial, Rojas renewed her objection to introduction of the
August 2013 application, again asserting that it was irrelevant and unfairly
2 The legislature amended the theft statute, effective June 5, 2013. Ch. 373, sec. 1,
§ 18-4-401, 2013 Colo. Sess. Laws 2196. Because the amendment became effective
during the alleged offense here, the prosecution charged Rojas with two counts of
theft rather than one—one count for the period governed by the old statute and
one count for the period governed by the amended statute.
5
prejudicial. She further argued the application was impermissible 404(b)
evidence. And she requested a limiting instruction to explain to the jurors that
they may consider the application “for purposes of explaining how the
investigation of Ms. Rojas began only and . . . not . . . for any other purpose.” The
court determined that the application was not 404(b) evidence, was relevant to the
charged offenses, and was admissible. The jury received no limiting instruction.
¶12 The prosecution questioned Rojas about the August 2013 application during
her testimony, highlighting that she knew she was employed at that time yet still
indicated on the form that she was not. The prosecution also discussed the
August 2013 application in its opening and closing arguments as evidence of
Rojas’s intent.
¶13 A jury convicted Rojas of two counts of theft under the general theft statute
for obtaining food stamp benefits to which she was not legally entitled. Rojas
appealed, and a division of the court of appeals vacated the convictions. People v.
Rojas, 2018 COA 20, ¶ 40, 490 P.3d 391, 398. We granted certiorari to review
whether the legislature had “created an independent criminal offense for food
stamp theft that abrogated the State’s authority to prosecute under the general
theft statute.” Rojas I, ¶ 9 n.1, 450 P.3d at 721 n.1. Concluding it had not, we
reversed the court of appeals’ judgment and remanded for the division to consider
any remaining issues on appeal. Id. at ¶ 28, 450 P.3d at 724.
6
¶14 On remand, the division addressed the three remaining contentions and
affirmed Rojas’s convictions, but it remanded for resentencing and correction of
the mittimus to reflect statutory changes that reduced the felony level of her
offenses. People v. Rojas, 2020 COA 61, ¶ 32, 490 P.3d 744, 749 (“Rojas II”). Rojas
again petitioned this court for certiorari review, which we granted.3
II. Analysis
¶15 After identifying the standard of review, we describe the evolution of the
res gestae doctrine in Colorado. We then consider some of the criticism of the
doctrine before concluding that the modern Rules of Evidence have rendered the
res gestae doctrine superfluous. In the interest of providing guidance going
forward, we also discuss what should trigger 404(b) scrutiny under the modern
Rules.
3 We granted certiorari to review the following issues:
1. Whether evidence that petitioner committed a similar offense,
after the charged offense, is admissible without a limiting
instruction, under the res gestae doctrine, to prove that she
committed the charged offense.
2. Whether this court should abolish the res gestae doctrine.
7
A. Standard of Review
¶16 We review a trial court’s evidentiary rulings for an abuse of discretion.
Venalonzo v. People, 2017 CO 9, ¶ 15, 388 P.3d 868, 873. A trial court abuses its
discretion when its ruling is based on an erroneous view of the law. People v.
Wadle, 97 P.3d 932, 936 (Colo. 2004).
¶17 In reviewing a trial court’s ruling, appellate courts ordinarily adhere to
precedent under the doctrine of stare decisis. See Love v. Klosky, 2018 CO 20, ¶ 14,
413 P.3d 1267, 1270. However, the doctrine is not so inflexible that we can’t
reevaluate our precedent where “we are ‘clearly convinced that the rule was
originally erroneous or is no longer sound because of changing conditions and that
more good than harm will come from departing from precedent.’” McShane v.
Stirling Ranch Prop. Owners Ass’n, Inc., 2017 CO 38, ¶ 26, 393 P.3d 978, 984 (quoting
People v. Blehm, 983 P.2d 779, 788 (Colo. 1999)); People v. LaRosa, 2013 CO 2,
¶¶ 30–31, 293 P.3d 567, 574–75 (departing from stare decisis after concluding there
were sound reasons for doing so).
B. The Evolution of the Res Gestae Doctrine in Colorado
¶18 Res gestae has deep roots in American common law. The Supreme Court
first referenced the doctrine in 1817, Leeds v. Marine Ins. Co., 15 U.S. 380, 383 (1817),
and Colorado courts have recognized it since at least the 1870s, see Doane v. Glenn,
1 Colo. 495, 499‍‍‍‍‍‍‍‍‍‍–501 (1872), rev’d on other grounds by Doane v. Glenn, 88 U.S. 338
(1874). The Latin phrase, which means “things done,” Res Gestae, Black’s Law
Dictionary (11th ed. 2019), encompassed evidence that was necessary to
understand the charged crime:
Res gestae may be broadly defined as matter incidental to a main fact
and explanatory of it, including acts and words which are so closely
connected therewith as to constitute a part of it, and without a
knowledge of which the main fact might not be properly understood.
They are the events themselves speaking through the instinctive
words and acts of participants; the circumstances, facts and
declarations which grow out of the main fact, are contemporaneous
with it and serve to illustrate its character.
Denver City Tramway Co. v. Brumley, 116 P. 1051, 1052–53 (Colo. 1911); see also
Graves v. People, 32 P. 63, 65 (Colo. 1893) (“Res gestae are events speaking for
themselves, through the instinctive words and acts of participants, not the words
and acts of participants when narrating the events. What is done or said by
participants under the immediate spur of a transaction becomes thus part of the
transaction, because it is then the transaction that thus speaks.” (quoting Francis
Wharton, A Treatise on the Law of Evidence in Criminal Issues § 262 (9th ed. 1884))).
¶19 In these early formulations, res gestae served primarily as an exception to
the general prohibition against hearsay. 2 Kenneth S. Broun et al., McCormick on
Evidence § 268 (Robert P. Mosteller ed., 8th ed. 2020). Courts admitted statements
made during or adjacent to the charged crime because it was assumed that the
spontaneity of such statements rendered them reliable. See Archina v. People,
307 P.2d 1083, 1097 (Colo. 1957) (“Under the well-established doctrine of res
9
gestae, unsworn statements are admitted on the theory that they are spontaneous
utterances, dominated and evoked by the transaction itself, and are not the result
of premeditation, reflection or design.”); see also Zapata, ¶ 71, 428 P.3d at 532 (Hart,
J., specially concurring); H. Patrick Furman & Ann England, The Expanding Use of
the Res Gestae Doctrine, 38 Colo. Law. 35, 35 (2009).
¶20 In this way, res gestae statements were treated much like the later-codified
hearsay exceptions for present sense impressions, excited utterances, and then-
existing mental states. See CRE 803(1)–(3); People v. Dement, 661 P.2d 675, 679
(Colo. 1983) (equating the requirements for admitting excited utterances under
CRE 803 to the pre-adoption requirements for admitting res gestae statements),
abrogated on other grounds by People v. Fry, 92 P.3d 970 (Colo. 2004); see also
McCormick on Evidence, supra, § 268.
¶21 Even in its hearsay heyday, however, the vagueness of res gestae earned
stiff rebukes from esteemed scholars and jurists. Professor Wigmore lamented
that res gestae’s “indefiniteness has served as a basis for rulings where it was easier
for the judge to invoke this imposing catchword than to think through the real
question involved.” Res Gestae, Black’s Law Dictionary (11th ed. 2019) (quoting
John H. Wigmore, A Students’ Textbook of the Law of Evidence 279 (1935)). Judge
Learned Hand was equally blunt, observing that res gestae “is a phrase which has
been accountable for so much confusion that it had best be denied any place
10
whatever in legal terminology; if it means anything but an unwillingness to think
at all, what it covers cannot be put in less intelligible terms.” United States v. Matot,
146 F.2d 197, 198 (2d Cir. 1944).
¶22 Despite these misgivings, res gestae gradually seeped into the realm of
uncharged misconduct evidence. Like res gestae, the law limiting the use of
uncharged misconduct evidence has a long history in American jurisprudence.
Because such evidence “has inhering in it damning innuendo likely to beget
prejudice in the minds of jurors” and “tends to inject collateral issues into a
criminal case which are not unlikely to confuse and lead astray the jury,” Stull v.
People, 344 P.2d 455, 458 (Colo. 1959), superseded by rule as stated in People v.
Williams, 2020 CO 78, ¶¶ 7–15, 475 P.3d 593, 595–98, its admissibility was “strictly
limited” under the common law, Williams, ¶ 7, 475 P.3d at 596.
¶23 Thus, a conflict emerged. While the scope of res gestae evidence expanded,
the common law governing other-acts evidence remained exclusionary. “Prior to
the adoption of the Colorado Rules of Evidence, . . . Colorado decisional law
adhered to the exclusionary principle that, subject to narrow exceptions, evidence
of other crimes was not admissible as proof of the accused’s guilt with respect to
the crime charged.” People v. Garner, 806 P.2d 366, 369 (Colo. 1991). When a trial
court admitted other-acts evidence (or “similar transaction evidence,” as this court
then termed it), we required the court to employ a set of procedural protections
11
focusing the jury on the limited purpose for which the evidence was received.4
Stull, 344 P.2d at 458–59. The prosecution, as the proponent of such evidence, had
to establish by “clear and convincing evidence” that the other act had occurred
and that the defendant was the person who had engaged in the misconduct. See
People v. Botham, 629 P.2d 589, 602 (Colo. 1981), superseded by rule as stated in Garner,
806 P.2d at 370. And we insisted that the court address three threshold issues:
(1) is there a valid purpose for which the evidence is offered? (2) is the
evidence relevant to a material issue of the case? (3) does the
probative value of the evidence of the prior act, considering the other
evidence which is relevant to the issue, outweigh the prejudice to the
defendant which would result from its admission?
People v. Honey, 596 P.2d 751, 754 (Colo. 1979), superseded by rule as stated in People v.
Rath, 44 P.3d 1033, 1039 (Colo. 2002).
¶24 Res gestae became a convenient way to bypass the more rigorous
requirements of Stull and its common-law progeny. It became a catchall for
admitting all sorts of misdeeds and character evidence—no matter how attenuated
4 Stull required that (1) the prosecutor inform the court of the purpose for which
the evidence was offered; (2) if the court admitted the evidence, “it should then and
there instruct the jury as to the limited purpose for which the evidence is being
received and for which the jury may consider it”; (3) the written jury instructions
should repeat the limited purpose for which the evidence was admitted; and
(4) any reference to the evidence should be in such terms as “transactions” or
“acts” or “conduct” rather than “offenses” or “crimes” or the like. 344 P.2d at
458–59.
12
in time, place, or manner—without carefully considering whether it was intrinsic
or extrinsic to the charged crime. See Lancaster v. People, 615 P.2d 720, 723 (Colo.
1980) (applying pre-Rules common law and noting that although “we have
alluded to the importance of the temporal proximity of the statement to the event
in a number of cases, we also have noted that contemporaneity of the act and the
assertion is not required” (citations omitted)).
C. The Modern Rules of Evidence
¶25 Although the modern Rules we adopted in 1980 said nothing about res
gestae, they broadly favored the admission of relevant evidence. Under Rules 401
and 402, unless otherwise prohibited by constitution, rule, or statute, all evidence
is admissible if it tends to make the existence of any consequential fact more or
less probable. And Rule 403 provides that otherwise relevant evidence may be
excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”
(Emphases added.)
¶26 Furthermore, the Rules of Evidence included Rule 404, which now governs
the admissibility of character evidence. Under 404(a), with certain limited
exceptions, “[e]vidence of a person’s character or a trait of his character is not
admissible for the purpose of proving that he acted in conformity therewith on a
13
particular occasion.” And 404(b) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in conformity with the character” but
may be admissible for purposes such as “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Rule 404(b)(3) requires that, in criminal cases, the prosecution provide the court
and the defendant with reasonable notice of its intent to introduce other-acts
evidence in writing before the trial. The notice must include the permitted
purpose for which admission of the evidence is sought and the reasoning
supporting that purpose. CRE 404(b)(3)(B).5
¶27 In People v. Spoto, 795 P.2d 1314, 1318–19 (Colo. 1990), this court “articulated
a framework for determining the relevancy of this kind of [character] evidence
within the scheme of the Rules, analyzing the requirements of CRE 401–404 in
terms of four specific components, or evidentiary considerations.” Williams, ¶ 8,
475 P.3d at 596. Such evidence must be (1) logically relevant (2) to a material fact
(3) independent of the prohibited inference of the defendant’s bad character, and
5 This court amended CRE 404(b) on March 29, 2021, effective July 1, 2021, to,
among other things, create subsection (3). The substance of the Rule remains
largely unchanged.
14
(4) the probative value of the evidence must not be substantially outweighed by
the risk of unfair prejudice. Id. at ¶ 9, 475 P.3d at 596. If a court determines the
evidence is admissible, the court must also, upon request, contemporaneously
instruct the jurors of the limited purpose for which the evidence may be
considered. CRE 105; see People v. Bondsteel, 2015 COA 165, ¶ 85, 442 P.3d 880, 897,
aff’d, 2019 CO 26, 439 P.3d 847.
¶28 And so, under the framework of the Rules, courts can admit uncharged
misconduct evidence for almost any non-propensity purpose:
In contrast to the former narrowly defined exceptions to a general rule
of exclusion, we have therefore made clear that Rule 404(b) identifies
a single purpose for which other-crime evidence must always be
excluded and delineates a non-exclusive list of examples of other
reasons for which other-crime evidence is not to be excluded if it is
otherwise admissible according to the rules of relevance. . . . The
traditional litany of narrowly circumscribed exceptions of pre-Rules
decisional law . . . no longer limits the admissibility of other-crime
evidence.
Williams, ¶¶ 11–12, 475 P.3d at 596– 97; see also Rath, 44 P.3d at 1038–39.
D. Examples of Inconsistency
¶29 Despite these developments, the res gestae doctrine remained.
Unsurprisingly, courts wrestling with whether an act is res gestae evidence or
404(b) evidence have reached inconsistent and often unpredictable results.
¶30 Consider, for example, People v. Hickam, 684 P.2d 228, 230‍‍‍‍‍‍‍‍‍‍–‍‍‍‍‍‍‍‍‍‍31 (Colo. 1984),
in which the prosecution charged the defendant with felony murder for a death
15
that occurred during the defendant’s flight from an attempted robbery. This court
concluded evidence of the contemporaneous underlying robbery was admissible
res gestae evidence of felony murder. Id. at 231–32. However, because one
element of felony murder is proof that the defendant committed (or attempted to
commit) one of the statutorily enumerated predicate crimes, evidence of the
predicate was plainly relevant to proving felony murder and not unfairly
prejudicial. Thus, we need not have relied on res gestae because evidence of the
robbery was admissible under Rules 401–403.
¶31 Now compare Hickam—where the proposed res gestae evidence and the
charged offense occurred contemporaneously—to the following two examples
involving more attenuated temporal connections between such evidence and the
charged offenses.
¶32 In People v. Czemerynski, 786 P.2d 1100, 1103 (Colo. 1990), the prosecution
charged the defendant with harassment and criminal extortion based on
threatening phone calls he allegedly made to the victim during a four-month
period. The trial court, “[r]elying on CRE 404(b),” admitted hundreds of calls the
defendant had allegedly made before and after the charged period “because [the
evidence] proved identity and was part of the res gestae of the criminal episode.” Id.
at 1109 (emphasis added). This court concluded that the trial court had not abused
its discretion by invoking both res gestae and Rule 404(b) to admit the evidence.
16
Id. But by definition, 404(b) evidence is extrinsic to the charged crime while,
traditionally, res gestae evidence is intrinsic to it. See Quintana, 882 P.2d at 1372.
So our decision unnecessarily blurred the analytical lines by approving of the trial
court’s reliance on mutually exclusive theories for admitting the evidence.
¶33 In Skufca, police officers arrested the defendant on a warrant for traffic
offenses and, during a search incident to arrest, found drugs and drug
paraphernalia in his car. 176 P.3d at 84. Earlier in the day, the defendant had sold
drugs to an undercover DEA agent. Id. The prosecution sought to introduce
testimony about the drug transaction as res gestae evidence to help prove that the
defendant knowingly possessed the drugs that were later found in his car. Id. at
85. The trial court found the testimony critical to the jury’s understanding of the
events surrounding the arrest and therefore admissible to explain the
circumstances. Id. This court agreed with the trial court that the earlier drug
transaction was admissible res gestae evidence because it was “relevant and it
helped establish for the jury the context and circumstances surrounding the crime
with which [the defendant] was charged.” Id. at 86. However, it was an act
separate from the charged offense, and its admissibility should have been
considered under 404(b) and Spoto. Moreover, under 404(b), the defendant would
have been entitled to an instruction limiting the jury’s use of the evidence to the
prosecution’s stated purpose.
17
¶34 The preceding examples demonstrate how we have muddied the law by
analyzing admissibility under res gestae instead of the Rules of Evidence. A more
recent decision from this court seems to have at least partially presaged the move
we make today.
¶35 In People v. Greenlee, 200 P.3d 363, 365–69 (Colo. 2009), we concluded that the
defendant’s statement that he wanted to kill a woman and hide her body in a
remote area, made two months before the murder at issue, was admissible under
general relevancy rules (CRE 401–403) and not excludable under 404(b).
Therefore, “there [was] no need to consider an alternative theory of relevance,
such as res gestae, where the evidence [was] admissible under general rules of
relevancy.” Greenlee, 200 P.3d at 368. Although we grounded the decision in the
Rules of Evidence rather than pre-Rules common law, we nonetheless added to
the confusion by concluding that, because the statements were relevant
independent of the impermissible inference about the defendant’s character,
404(b) did not apply.6 Id. But this criterion is simply part of the 404(b) analysis
6To the extent that we suggested in Greenlee that Rule 404(b) is implicated only
by other criminal acts, we disavow that suggestion. See Kaufman v. People,
202 P.3d 542, 552‍‍‍‍‍‍‍‍‍‍–60 (Colo. 2009) (analyzing the admissibility of the defendant’s
non-criminal conduct, which included martials arts and weapon training,
drawings, and weapons collection, under 404(b) and Spoto); Masters v. People,
18
under Spoto, not a basis for avoiding Rule 404(b). If the proffered evidence is
extrinsic to the charged crime, which the Greenlee court impliedly concluded these
statements were, 200 P.3d at 366–67, and if it implicates the defendant’s character,
its admissibility is governed by Rule 404(b). We discuss this at greater length
below.
E. Farewell Res Gestae
¶36 In his dissent to the division’s opinion here, Judge Furman rightly observed
that res gestae often “obscure[s] what [it] purport[s] to describe.” Rojas II, ¶ 59,
490 P.3d at 752 (Furman, J., dissenting) (alteration in original) (quoting 1 Kenneth
S. Broun et al., McCormick on Evidence § 190.9 (Robert P. Mosteller ed., 8th ed.
2020)). And he has not been alone in his criticism. See, e.g., Zapata, ¶ 76, 428 P.3d
at 533 (Hart, J., specially concurring) (noting that res gestae “is a vague and nearly
standardless concept that is applied too expansively”); People v. Agado, 964 P.2d
565, 569 (Colo. App. 1998) (Briggs, J., specially concurring) (“[T]he doctrine has
confounded counsel and courts, often tending to create as much confusion as
clarification.”).
58 P.3d 979, 996–1004 (Colo. 2002) (analyzing the admissibility of the defendant’s
drawings and writings under 404(b) and Spoto).
19
¶37 Not only is the doctrine vague, it’s harmful. Because of its ambiguity, res
gestae—which was never more than a theory of relevance, Greenlee, 200 P.3d at
368—is more often treated as a theory for near-universal admissibility. The
doctrine invites truncated analysis. As noted by Justice Hart in her special
concurrence in Zapata, res gestae all too often “short-circuit[s] the evaluation called
for in Rule 404(b)” analysis. ¶ 75, 428 P.3d at 532–33. The result has been that
courts often skip the first step in deciding whether a defendant’s acts are
admissible: determining if the evidence is intrinsic or extrinsic to the charged
offense. And by skipping this step, courts often admit what should be extrinsic,
404(b) evidence without conducting a Spoto analysis or adhering to procedural
safeguards, or they consider the admissibility of intrinsic evidence under 404(b)
and Spoto, effectively diluting the general relevancy rules.
¶38 The “completing the story” rationale to admit other-acts evidence “create[s]
the greatest risk of subverting the limitations that ought to apply whenever the
jury is informed of a person’s uncharged wrongdoing.” David P. Leonard, New
Wigmore on Evidence: Evidence of Other Misconduct § 5.3.2 (2d ed. Supp. 2020). This
application of res gestae risks being the exception that swallows Rule 404(b). For
example, in Lucas v. People, 992 P.2d 619, 624 (Colo. App. 1999), a case involving a
murder allegation, a division of the court of appeals approved of the trial court’s
admission of evidence of a burglary the defendant committed three days before
20
the charged crime under the doctrine of res gestae to demonstrate that he and his
friends left Colorado Springs with no means of supporting themselves. The
prosecution asserted that they “began to commit crimes in order to provide for
themselves” and, operating under such conditions, “encountered, robbed, and
killed the victim.” Id. This language is “perilously close to simply admitting
evidence of bad character.” Furman & England, supra, 38 Colo. Law. at 38.
¶39 Moreover, the continued use of res gestae is unnecessary. “[E]very rule of
evidence to which it has ever been applied exists as a part of some other well-
established principle and can be explained in the terms of that principle.” 6 John
Henry Wigmore, Evidence in Trials at Common Law § 1767 (James H. Chadbourne
rev., 1976).
¶40 Colorado’s experience is not unique. Many jurisdictions have determined
that res gestae is incompatible with the modern Rules. See, e.g., People v. Jackson,
869 N.W.2d 253, 264 (Mich. 2015) (“[T]he plain language of MRE 404(b) . . . sets
forth no such ‘res gestae exception’ from its coverage. Nor do we see any basis for
reading one into the rule.”); State v. Fetelee, 175 P.3d 709, 735 (Haw. 2008)
(concluding that the Hawaiian Rules of Evidence supersede res gestae); United
States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000) (“[W]e are confident that there is
no general ‘complete the story’ or ‘explain the circumstances’ exception to
Rule 404(b) . . . .”). And several of the federal courts have stopped relying on res
21
gestae, or “inextricable intertwinement,” as a theory of admission. E.g., United
States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010) (“[R]esort to inextricable
intertwinement is unavailable when determining a theory of admissibility.”); see
also Daniel J. Capra & Liesa L. Richter, Character Assassination: Amending Federal
Rule of Evidence 404(b) to Protect Criminal Defendants, 118 Colum. L. Rev. 769,
798–800 (2018).7
7 The federal analogue to res gestae, the “inextricably intertwined” doctrine, has
come under fire for many of the same reasons motivating our decision today. See,
e.g., Edward Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach
to Untangling the ‘Inextricably Intertwined’ Theory for Admitting Evidence of an
Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 729–30 (2010)
(“‘Inextricably intertwined’ is the ‘modern de-Latinized’ equivalent of res gestae,
and it has been savaged by a similar critique. . . . The vacuous nature of the test’s
wording gives courts license to employ sloppy analysis and allows them quickly
to slip from a conclusory analysis to a desired conclusion.” (citations omitted));
Milton Hirsch, “This New-Born Babe an Infant Hercules”: The Doctrine of “Inextricably
Intertwined” Evidence in Florida’s Drug Wars, 25 Nova L. Rev. 279, 280–81, 294–95,
(2000) (noting that res gestae often operates as a “shibboleth” or “talisman,” which
seemingly, upon incantation, allows courts to engage in results-oriented decision-
making); Jason Brauser, Intrinsic or Extrinsic?: The Confusing Distinction Between
Inextricably Intertwined Evidence and Other Crimes Evidence Under Rule 404(b),
88 Nw. U. L. Rev. 1582, 1618 (1994) (“By abolishing the inextricably intertwined
exception, the courts will be forced to analyze whether uncharged misconduct
evidence is offered for a legitimate purpose or whether it is offered only to show
a defendant’s character.”). Some courts have been similarly unsparing. See, e.g.,
United States v. Cureton, 739 F.3d 1032, 1037 (7th Cir. 2014) (noting that res gestae
“is usually propensity evidence simply disguised as inextricable intertwinement
evidence, and is therefore improper” (quoting Gorman, 613 F.3d at 718)).
22
¶41 We now join those jurisdictions and abolish the res gestae doctrine in
Colorado. For all of the reasons provided above, we are clearly convinced that
more good than harm will come from departing from our precedent regarding res
gestae evidence. In doing so, we seek to do more than simply de-Latinize the
analysis. We strive to move beyond the use of catchphrases and metaphors for
deciding when Rule 404(b) is at issue.
F. How to Decide When Rule 404(b) Applies
¶42 We recognize that abolishing the res gestae doctrine offers no magic wand.
It won’t eliminate the line-drawing problems inherent in deciding what evidence
warrants 404(b) review. After all, Rule 404(b) requires trial courts to evaluate, in
the first instance, when “other” crimes, wrongs, or acts are at issue. Therefore,
some ambiguity remains regarding when the charged crime ends and “other” acts
begin.
¶43 Furthermore, Rule 404(b) applies only when the trial court determines that
uncharged misconduct evidence supports an improper inference of the
defendant’s character. See Old Chief v. United States, 519 U.S. 172, 184 (1997)
(describing Rule 404(b) as “dealing with admissibility when a given evidentiary
item has the dual nature of legitimate evidence of an element and illegitimate
evidence of character” (emphasis added)); see also United States v. Kupfer, 797 F.3d
1233, 1242–43 (10th Cir. 2015) (explaining that evidence of a defendant’s other acts
23
is only subject to Rule 404(b) if it concerns the defendant’s character). If evidence
doesn’t implicate the defendant’s character, Rule 404(b) doesn’t govern its
admissibility.
¶44 We join those courts that generally recognize an intrinsic-extrinsic
distinction, with extrinsic acts falling under Rule 404(b) and intrinsic acts falling
outside the Rule’s scope. See, e.g., United States v. Green, 617 F.3d 233, 248–49 (3d
Cir. 2010); Bowie, 232 F.3d at 928–29. These courts have narrowed the definition of
intrinsic evidence to two acts: (1) those that directly prove the charged offense and
(2) those that occur contemporaneously with the charged offense and facilitate the
commission of it. Green, 617 F.3d at 248–49; Bowie, 232 F.3d at 929; see also State v.
Rose, 19 A.3d 985, 1009–10 (N.J. 2011) (abolishing the res gestae doctrine and
applying Green).
¶45 Examples from jurisdictions already operating in the post-res gestae world
are instructive. In United States v. Roberson, No. 21-102 (JDB), 2022 WL 35643, at *2
(D.D.C. Jan. 4, 2022), the defendant was charged with one count of distribution of
child pornography for sending a video by email to “Email Address 2.” In a motion
in limine, the prosecution sought to introduce all the defendant’s email
communications (over seventy emails spanning a fourteen-month period) with
Email Address 2. Id. at *2, 4. The court observed that “[b]ecause Rule 404(b)
applies exclusively to evidence of other acts . . . only ‘[a]cts “extrinsic” to the crime
24
charged are subject to Rule 404(b)’s limitations; acts “intrinsic” to the crime are
not.’” Id. at *3 (quoting United States v. McGill, 815 F.3d 846, 879 (D.C. Cir. 2016)
(per curiam)). “[A]n act is ‘intrinsic’ to the charged conduct for purposes of
Rule 404(b) only if it (a) is part of the charged offense; (b) is offered as direct
evidence of the charged crime; or (c) was performed contemporaneously with the
charged crime and facilitated the commission of the charged crime.” Id. at *4.
¶46 Using this framework, the court first summarized the communications sent
before the video. Relying on the prosecution’s summary, the court described that
the first email was the defendant initiating contact with Email Address 2, the
second was Email Address 2 responding and directly soliciting the criminal act,
and the third email was the defendant sending the video that formed the basis of
the charged offense to Email Address 2. Id. This thread of communication all
occurred within minutes. Id. The court concluded that these emails “leading up
to and immediately surrounding” transmission of the video were intrinsic
evidence because they occurred contemporaneously with the charged offense and
facilitated its commission and were not, therefore, constrained by Rule 404(b). Id.
¶47 The court then analyzed the emails sent after the video, some sent more than
a year later, concluding that “[i]t stretches credulity to call . . . two messages sent
fourteen months apart contemporaneous with one another.” Id. Further, because
the court couldn’t “see how an act occurring well after the charged crime could
25
‘assist in bringing [the crime] about,’” it concluded the post-video emails were not
intrinsic to the charged crime. Id. at *5 (quoting United States v. Cox, No.
CR-16-08202-001-PCT-ROS, 2018 WL 9785498, at *1 (D. Ariz. May 1, 2018)).
¶48 Finally, the court rejected the government’s argument that all the emails
between the defendant and Email Address 2 “provide[d] necessary and
indispensable context for [the defendant’s] conduct,” concluding that “such a
broad view of ‘intrinsic’ . . . is too ‘flimsy’ a basis for jettisoning Rule 404(b)
entirely.” Id. The court concluded the post-video emails were nonetheless
admissible under Rule 404(b) because they were probative of non-propensity
purposes, relevant to a material issue other than the defendant’s character, and not
unduly prejudicial. Id. at *5–7.
¶49 The court in United States v. Shea, 159 F.3d 37 (1st Cir. 1998), applied a similar
test. In Shea, police were searching for the identity of two men who had attempted
to rob a bank. Id. at 38–39. During the attempted robbery, one man pointed a
shiny, silver revolver at one of the clerks while the other man pointed a black
revolver at the other clerk; however, because neither clerk could open the vault,
the robbers left empty-handed. Id. at 38. The men entered and exited the bank
through the same broken window, with one of the men cutting himself and leaving
DNA evidence at the scene that was later matched to the defendant. Id. One week
after the attempted robbery, the defendant was arrested for another, unrelated
26
robbery. Id. at 38–39. During that arrest, police seized from the defendant a black
revolver that matched the description of one of the guns used during the earlier,
attempted robbery. Id.¶50 At the defendant’s trial for the earlier, attempted armed robbery, the
prosecution sought to introduce the black revolver. Id. at 38–39. The trial court
admitted the revolver under Rule 404(b). Id. at 39. The appellate court rejected
this reasoning, concluding the revolver alone was not 404(b) evidence and its
admissibility should have been evaluated under Rules 401 and 403. Id. The court
concluded that the revolver seized from the defendant during his arrest was
“intrinsic, direct evidence” that he used the same revolver during the attempted
robbery for which he was on trial. Id. at 39–40. The court further concluded that
admitting the revolver into evidence was not unfairly prejudicial (as opposed to
evidence of the second robbery, which would have been an extrinsic act subject to
404(b) analysis). Id. at 40.
¶51 To further elucidate the relevant concepts, consider a purely hypothetical
addition to Shea. Imagine the defendant had gone to the bank the day before the
alleged robbery to cash a check, and the prosecution sought to introduce evidence
of that visit at trial to suggest that the defendant could have been casing the bank.
Because evidence of that visit neither directly proves the charged offenses nor
occurred contemporaneously with them and facilitated their commission, that
27
evidence is not intrinsic. Further, cashing a check at a bank does not implicate
character, so admission of that evidence is not governed by 404(b). The court is
left to consider the admissibility of that evidence pursuant to Rules 401–403.
¶52 With these examples in mind, we hold that, in evaluating whether
uncharged misconduct evidence triggers Rule 404(b), a trial court must first
determine if the evidence is intrinsic or extrinsic to the charged offense. Intrinsic
acts are those (1) that directly prove the charged offense or (2) that occurred
contemporaneously with the charged offense and facilitated the commission of it.
Evidence of acts that are intrinsic to the charged offense are exempt from
Rule 404(b) because they are not “other” crimes, wrongs, or acts. Accordingly,
courts should evaluate the admissibility of intrinsic evidence under Rules 401–403.
If extrinsic evidence suggests bad character (and thus a propensity to commit the
charged offense), it is admissible only as provided by Rule 404(b) and after a Spoto
analysis. Conversely, if extrinsic evidence does not suggest bad character,
Rule 404(b) does not apply and admissibility is governed by Rules 401–403.8
8Of course, like all evidentiary decisions, a trial court’s ruling regarding whether
evidence triggers Rule 404(b) is subject to review under the deferential abuse of
discretion standard. See People v. Jones, 2013 CO 59, ¶ 11, 311 P.3d 274, 276.
28
G. Application to Rojas’s Alleged Theft
¶53 Because Rojas preserved her objection to the court’s allegedly non-
constitutional error, we review any error for ordinary harmlessness. Hagos v.
People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119; Crim. P. 52(a). Under this standard, we
must reverse if the error “substantially influenced the verdict or affected the
fairness of the trial proceedings.” Hagos, ¶ 12, 288 P.3d at 119 (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)); see Crim. P. 52(a). To determine if that
occurred, we look to whether the prosecution has shown that “there is no
reasonable possibility that [the error] contributed to the defendant’s conviction.”
Pernell v. People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673.
¶54 The prosecution charged Rojas with two counts of theft for her conduct
between February 1, 2013, and July 31, 2013. Thus, Rojas’s August application,
filed after the relevant time period, neither directly proved the prior thefts nor
occurred contemporaneously with them and facilitated their commission. Rojas’s
filing of the August application does not satisfy our definitions for intrinsic
evidence and is, therefore, an extrinsic, “other act.” Moreover, evidence that Rojas
knowingly submitted a later application containing false information about her
income invites the inference that she is a “bad” person who lies on applications
and so she must have knowingly lied on the applications at issue in her trial.
Therefore, because the August application is extrinsic to the charged crimes and
29
invites a propensity inference, its admissibility is governed by Rule 404(b). The
trial court abused its discretion by admitting the evidence without the required
Spoto analysis and accompanying procedural safeguards. See People v. Chavez,
2020 COA 80M, ¶ 8, 486 P.3d 377, 378 (“A court abuses its discretion if it
misinterprets or misapplies the law.”).
¶55 The error was not harmless. The only issue at trial was whether Rojas
obtained the food stamp benefits by deception. “To prove the element of
deception, the prosecution must prove that the defendant made a
misrepresentation, which is ‘a false representation of a past or present fact,’ and
that ‘the victim parted with something of value in reliance upon [the defendant’s]
misrepresentation[].’” People v. Vidauri, 2021 CO 25, ¶ 13, 486 P.3d 289, 242
(quoting People v. Prendergast, 87 P.3d 175, 185 (Colo. App. 2003)) (alterations in
original). Rojas’s defense at trial was that her misrepresentations on the January
application resulted from a misunderstanding of the forms; the prosecution
contended that she made a knowing misrepresentation.
¶56 The prosecution relied on the August application during closing arguments.
And, even if this evidence might have been admissible under Rule 404(b) for some
non-propensity purpose, the absence of a limiting instruction permitted the jury
to misuse the evidence. We believe there is a reasonable probability that admitting
the August application, without any 404(b) safeguards, affected the fairness of the
30
trial by allowing the jury to convict Rojas based on implied propensity—she
misrepresented her income in August; therefore, she likely did it on the earlier
applications too.
III. Conclusion
¶57 The judgment of the court of appeals is reversed, and the case is remanded
to the trial court for a new trial.
CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, concurred
in the judgment only.
31
CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, concurring
in the judgment only.
¶58 I agree with the majority that the trial court improperly admitted Rojas’s
August application as res gestae evidence. And I further acknowledge that the
doctrine of res gestae has, at times, been misconstrued in Colorado’s courts. But I
disagree with the majority’s conclusion that jettisoning the doctrine will solve any
problems—it won’t. Regardless of whether we call evidence res gestae, intrinsic
evidence, or other-acts evidence under CRE 404(b), courts will always be
confronted with the difficult question of when the crime starts and stops. In other
words, no matter what the doctrine is called, courts still must parse out when an
act begins to constitute an “other act.” Because that question will always exist, I
fear that the majority’s decision is only going to cause a needless explosion of
CRE 404(b) hearings, furthering the burden on Colorado’s overworked trial
courts. And equally importantly, such broad action violates stare decisis. As the
majority acknowledges, res gestae has been a part of Colorado law for well over a
century. See Maj. op. ¶ 18. Yet, today, it boldly proclaims that res gestae must be
discarded. I strongly, but respectfully, disagree. Therefore, I concur in the
judgment only.
1
I. Res Gestae Evidence Is Just Relevant Evidence
¶59 Simply put, res gestae is a label used to describe a subset of relevant
evidence. As such, we have said that res gestae is a theory of relevance, not an
alternative theory of admissibility that escapes the scrutiny of CRE 401, 402, and
403. People v. Quintana, 882 P.2d 1366, 1374 (Colo. 1994) (“Res [g]estae evidence is
admissible only if it is relevant and its probative value is not substantially
outweighed by the danger of unfair prejudice.”).
¶60 Res gestae evidence is “linked in time and circumstances with the charged
crime, . . . forms an integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury.” Id. at 1373 (quoting
United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). Moreover, the
doctrine includes “acts and words which are so closely connected” to the charged
offense “as to constitute a part of the transaction, and without knowledge of which
the main fact might not be properly understood.” People v. Rollins, 892 P.2d 866,
872–73 (Colo. 1995) (quoting Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991)).
¶61 The majority and I seem to agree that in order to elucidate the definition of
res gestae, it is essential to distinguish CRE 404(b) and the specific types of
evidence that the Rule endeavors to protect against. Under CRE 404(b)(1), parties
are prohibited from introducing evidence of “any other crime, wrong, or act . . . to
prove a person’s character in order to show that on a particular occasion the person
2
acted in conformity” therewith. This Rule aims to protect defendants against
unfairly prejudicial “propensity” arguments—arguments that use evidence of a
defendant’s “bad” character to show that she acted in line with her character and
therefore committed the charged offense. See Masters v. People, 58 P.3d 979, 995
(Colo. 2002); Stull v. People, 344 P.2d 455, 458 (Colo. 1959), superseded by rule as stated
in People v. Williams, 2020 CO 78, ¶¶ 7–15, 475 P.3d 593, 595–98.
¶62 By its plain language, CRE 404(b)(2) makes clear that such evidence is
admissible for purposes besides propensity, such as “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” However, because the Rules of Evidence aim to avoid unfairly
prejudicing defendants, a proponent of other-acts evidence faces additional
procedural hurdles. The proponent must provide opposing counsel with pretrial
notice of intent to introduce other-acts evidence. CRE 404(b)(3). The trial court
must make multi-part evidentiary findings to determine whether the evidence is
or is not admissible under CRE 404(b). See Kaufman v. People, 202 P.3d 542, 552–53
(Colo. 2009). And if the court does find the evidence admissible, it must then
“instruct the jury, pursuant to CRE 105, on the limited purpose for which such
evidence is admitted,” both at the time of admission and at the close of evidence.
People v. Garner, 806 P.2d 366, 374 (Colo. 1991).
3
¶63 The distinction between res gestae and CRE 404(b) is visible in the plain
language of the Rule itself. While res gestae evidence is integral to the charged
crime, CRE 404(b) proscribes introducing evidence of “other” acts, crimes, or
wrongdoings. And so, under a plain reading of CRE 404(b), only evidence of acts,
crimes, or wrongdoings that are independent from the charged offense must be
presented with special caution for fear of unfair prejudice to the defendant.
Quintana, 882 P.2d at 1373 n.12. CRE 404(b) was “never intended to apply to
evidence that is admissible due to its inherent connection to the crime charged.”
State v. Gunby, 144 P.3d 647, 668 (Kan. 2006) (McFarland, C.J., dissenting)
(referring to Kan. Stat. Ann. § 60-455 (2021), Kansas’s version of CRE 404).
¶64 Therefore, res gestae evidence and CRE 404(b) evidence are different types
of evidence. On the one hand, CRE 404(b) protects defendants from the
introduction of evidence that is extrinsic, albeit relevant, to the charged offense.
On the other hand, the doctrine of res gestae recognizes that the prosecution may
introduce relevant evidence of acts intrinsic to the charged offense. This
separation makes sense because the purpose underlying CRE 404(b) is not served
by excluding res gestae evidence. While a jury may misuse extrinsic evidence for
propensity purposes, evidence of acts admitted under res gestae are themselves part
of the charged offense; thus, their introduction does not offend the propensity rule.
See Quintana, 882 P.2d at 1372.
4
II. Res Gestae Has Been Subject to Misuse
¶65 The majority criticizes res gestae as being too confusing and too malleable.
See Maj. op. ¶¶ 36–38. It worries that res gestae is used to sneak in the type of
propensity evidence that CRE 404(b) is meant to exclude. See id. at ¶¶ 2, 24, 38.
Despite the doctrinal distinction between CRE 404(b) and the res gestae doctrine,
I take the majority’s point that Colorado’s courts have, at times, admitted evidence
under res gestae when it should have been protected by the safeguards of
CRE 404(b). In fact, I agree.
¶66 To be frank, this case presents a clear example of other-acts evidence that
was improperly admitted as res gestae evidence. The People charged Rojas for
unlawfully receiving food stamps from February 1, 2013, to July 31, 2013. The
separate August application was (1) removed in time and (2) inessential to
complete the story of the charged offense. See Rollins, 892 P.2d at 873 (finding
evidence that was “neither contemporaneous with nor provided a background for
the offense charged” did not constitute res gestae evidence). Submitting the
August application did not help Rojas allegedly steal food stamps from February
to July of 2013. It was not “so closely connected” with the charged crime that it
“constitute[d] a part of the transaction.” See id. at 872 (quoting Woertman, 804 P.2d
at 190 n.3). In fact, the subsequent application was wholly extrinsic.
5
¶67 With that said, I agree with the majority that the proper course of action here
is reversing Rojas’s conviction.1 But, in my view, it is improper to use this case to
disregard a legal doctrine that has existed for over a century, and I believe such
action will cause (at best) confusion and (at worst) misuse. Instead, I would
strengthen the already-existing guardrails surrounding the doctrine. First, I
would emphasize that res gestae evidence must be essential to the commission of
the charged crime. Second, I would caution that, even if the proffered evidence is
essential, it is not admissible if it is unfairly prejudicial under CRE 403. Third,
where appropriate, I would encourage trial courts to provide CRE 105 limiting
instructions alongside evidence admitted as res gestae.2 Finally, I would stress
that the doctrine of res gestae is not an exception to skirt the protections of
1Instead of simply remanding for a new trial, as the majority does, see Maj. op. ¶ 4,
I would reverse and remand with specific instructions for the trial court to
determine if this evidence is admissible under CRE 404(b) prior to the new trial.
This way, there would be no unnecessary confusion.
2 Courts are not required to provide limiting instructions under CRE 105 when
they admit evidence as res gestae. See Quintana, 882 P.2d at 1375. However, when
it comes to some types of res gestae evidence—such as essential, contextual
evidence that could nonetheless implicate a defendant’s character—nothing
prohibits courts from alerting the jury to the limited, contextual purpose for which
the evidence is admitted. See People v. Gladney, 570 P.2d 231, 233 (Colo. 1977)
(noting that it is the “better practice” to provide a limiting instruction alongside
res gestae evidence). Encouraging trial courts to more freely provide a limiting
instruction alongside sensitive res gestae evidence would lessen the risk that the
jury might misuse it.
6
CRE 404(b): Other-acts evidence that is truly extrinsic, such as the evidence of
Rojas’s subsequent application in this case, must be safeguarded by pretrial notice,
a hearing, and, where appropriate, a limiting instruction.
III. Abandoning Res Gestae Is Unwise
¶68 I believe that the majority’s decision to casually say “farewell” to res gestae
is ill-advised for three reasons. First, res gestae is merely a framework that assists
courts in making difficult and fact-intensive evidentiary decisions. There will
always be the question of when a crime starts and when it stops; the majority’s
attempt to answer that question just shifts the analysis to CRE 404(b). Second, the
majority’s holding today imposes an unreasonable burden on Colorado’s trial
courts by needlessly pushing them to analyze vast amounts of evidence at a
pretrial stage under the rubric of CRE 404(b). Finally, to discard res gestae violates
the mandate of stare decisis and disrupts the rule of law.
A. The Majority’s Decision Does Not Solve the Underlying
Dilemma
¶69 The majority concludes that the solution to res gestae’s misuse is to rebrand
the doctrine.3 See Maj. op. ¶¶ 44–52. Pursuant to the majority’s new rule, a
3I say that the majority’s opinion “rebrands” the doctrine because, despite its
broad proclamation that the mere notion of res gestae obfuscates CRE 404(b)
analyses, see Maj. op. ¶ 36, it has chosen to retain res gestae’s core concept, see id.7
reviewing court must determine what constitutes the “charged offense.” Id. at
¶ 44. Evidence of acts that “implicate” the defendant’s character but (1) directly
prove the charged offense, or (2) are performed contemporaneously with the
charged offense and therefore facilitate its commission will be admissible as
“intrinsic” evidence under the framework of CRE 401–403. Id. at ¶¶ 43–44.
Evidence of acts that implicate the defendant’s character but are “extrinsic”—that
is, they do not directly prove nor facilitate the offense—will then become
other-acts evidence under CRE 404(b). Id. at ¶ 52. And whether intrinsic or
extrinsic, evidence will be governed by CRE 401–403 (not CRE 404(b)) as long as it
does not implicate the defendant’s character. Id. at ¶¶ 43, 52. That seems simple
enough.
¶70 But, in my view, rebranding res gestae in this way solves nothing. This is
because the majority’s holding seemingly ignores the reality that crimes are not
committed in neat packages. Every offense comes with context; therefore,
practically speaking, “prosecutors cannot . . . avoid showing certain acts that are
not themselves perfectly congruent with the categories defining the charged crime
at ¶ 44 (maintaining the “intrinsic-extrinsic distinction”). As such, it seems that
the majority has “abolish[ed]” res gestae in name only. See id. at ¶ 41.
8
or crimes.” 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:33
(4th ed. 2021).
¶71 My point is simply that by substituting “intrinsic evidence” for res gestae
evidence, the majority does not vanquish the debate as to what is part of the
crime—it merely tweaks the wording of the test under which that evidence is
admissible. Under the majority’s new regime, the fight will now be over which
acts “directly prove” or “facilitate” the charged offense (and are therefore
admissible under the framework of CRE 401–403) as opposed to which acts do not
fit that description (and are therefore protected by CRE 404(b)).
¶72 Indeed, in jurisdictions where appellate courts have disavowed res gestae
in favor of intrinsic evidence, the struggle to define what does and does not
constitute Rule 404(b) evidence is still being battled out in the trial courts.
Consider, for example, one of the cases that the majority apparently models its
new rule upon, United States v. Green, 617 F.3d 233 (3d Cir. 2010). See Maj. op. ¶ 44.
In Green, the Third Circuit Court of Appeals denounced the federal equivalent of
res gestae in favor of roughly the same rule that the majority announces today.
617 F.3d at 246–49. With this proclamation, the court intended to nullify the
“elusive and unhelpful” doctrine in favor of cleaner rules. Id. at 246.
¶73 Yet, foreseeably, the Green court merely shifted the conversation. After the
decision was handed down, trial courts in the Third Circuit were left to consider
9
what, exactly, is admissible under the new, “narrow[er]” intrinsic evidence
standard. Id. at 248. And roughly twelve years later, it seems as if the new label
gives rise to the same varied results as the old one. See United States v. Williams,
974 F.3d 320, 357 (3d Cir. 2020) (“[T]he nature and scope of the evidence able to be
deemed intrinsic will vary with the charged offense. In particular, where a
criminal conspiracy is charged, courts have afforded the prosecution considerable
leeway to present evidence, even of unalleged acts within the indictment
period . . . .”) (collecting cases); see also United States v. Schneider, 801 F.3d 186,
200–01 (3d Cir. 2015) (ruling that evidence that the defendant showed the victim a
sexually charged film was admissible as intrinsic evidence in a prosecution for
traveling in foreign commerce with the intent to engage in sex with a minor);
United States v. Gassew, 42 F. Supp. 3d 686, 694 (E.D. Pa. 2014) (concluding it was
proper to admit evidence that the defendant robbed patrons and employees of a
bar at the same time he robbed the bar itself because it “directly prov[ed]” that he
robbed the bar—the charged offense in that case). It seems that rebranding res
gestae has failed to eliminate the fight over Rule 404(b) classifications in the Third
Circuit, and I predict Colorado will be no different.
¶74 Moreover, I believe the majority’s ruling today will have unintended
consequences. At oral argument, defense counsel raised an interesting argument.
She posited that the doctrine of res gestae prompts hurried, whispered
10
conversations at the bench, where trial court judges must make split-second
decisions about what is and is not res gestae evidence. From my experience, I
know that her assertion is accurate. But the problem that defense counsel
diagnoses is not due to res gestae’s imperfection. Rather, it is a direct result of how
inherently difficult it is to determine when the charged offense ends and “other”
offenses, acts, or misdeeds begin. That grey area will not suddenly become black
and white after res gestae is replaced. For this reason, I am certain that, despite
the majority’s holding today, those whispered conversations and split-second
evidentiary rulings at the bench will continue. The only difference is that, going
forward, these conversations will be about why there was not adequate pretrial
notice under CRE 404(b) for a vast array of evidence. In short, the majority’s
solution just shifts the type of debate that will necessarily occur. The fact is that
these difficult decisions will always exist, regardless of what they are called.
B. The Majority’s Decision Places an Unreasonable Burden
on Trial Courts
¶75 Undoubtedly, it is Colorado’s already overworked trial courts that will bear
the brunt of the majority’s holding. Because of the dangers of the propensity
inference, CRE 404(b) requires the proponent of other-acts evidence to give
opposing counsel advance notice of intent to introduce the evidence at trial and
the trial court to both (1) rule on the evidence’s admissibility prior to trial and
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(2) provide an accompanying limiting instruction if it rules the evidence
admissible.
¶76 The majority’s decision to discard res gestae facilitates a shift. Now, I
envision that, mid-trial, attorneys will argue that evidence of every granular detail
(even if relevant and integral to the case—such as the example of the alleged
robber who uses check-cashing as a ruse to scout out a bank in advance of the
actual robbery, see Maj. op. ¶ 51) depicts an “other act” and therefore should have
been safeguarded under CRE 404(b). I fear that the question of what is or isn’t part
of a charged offense under CRE 404(b) will be excessively litigated, clogging the
courts with a glut of unnecessary pretrial hearings. In my view, it is not only
unnecessary but also unreasonable to increase the workload of the trial courts in
the name of a solution that, in reality, does not resolve the question of what is part
of a crime and what is not. Again, that question will remain, regardless of what
we call it.
C. The Majority’s Decision Violates the Mandate of Stare
Decisis
¶77 Finally, under the principle of stare decisis, I believe the doctrine of res
gestae should be kept intact. Stare decisis is a fundamental principle of the rule of
law; it is the “preferred course because it promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of the judicial
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process.” Love v. Klosky, 2018 CO 20, ¶ 14, 413 P.3d 1267, 1270 (quoting Payne v.
Tennessee, 501 U.S. 808, 827 (1991)).
¶78 Throughout this court’s history, “we have explained that stare decisis
‘should be adhered to in the absence of sound reason for rejecting it.’” People v.
Blehm, 983 P.2d 779, 788 (Colo. 1999) (quoting Smith v. Dist. Ct., 907 P.2d 611, 612
(Colo. 1995)). In other words, we have a duty to exercise “extreme reluctance in
overruling settled law.” In re Marriage of Grubb, 745 P.2d 661, 667 (Colo. 1987)
(Erickson, J., dissenting). Departure from precedent should only occur when “we
are clearly convinced that (1) the rule was originally erroneous or is no longer
sound because of changing conditions and (2) more good than harm will come
from departing from precedent.” Love, ¶ 15, 413 P.3d at 1270.
¶79 Here, in my view, “no reason is advanced which calls for deviating from
stare decisis,” see Creacy v. Indus. Comm’n, 366 P.2d 384, 386 (Colo. 1961); thus, we
should decline to do so. As the majority acknowledges, the doctrine of res gestae
is well-settled. See Maj. op. ¶ 18. Colorado courts have recognized the early forms
of res gestae since at least the 1870s. See Doane v. Glenn, 1 Colo. 495, 499–501 (1872),
rev’d on other grounds by Doane v. Glenn, 88 U.S. 33 (1874). Even in its more modern
form, res gestae has been a part of our jurisprudence for over ninety years. See
Abshier v. People, 289 P. 1081, 1088 (Colo. 1930) (holding that evidence of the
defendant’s other crimes was admissible because the offenses were “indivisibly
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connected with, incidental to, and in furtherance of” the charged crime). And a
quick survey of Colorado case law reveals that courts have consistently relied on
the res gestae framework in tandem with the Rules of Evidence for the past
forty-odd years. See People v. Czemerynski, 786 P.2d 1100, 1109 (Colo. 1990);
Quintana, 882 P.2d at 1373–74; Rollins, 892 P.2d at 872–73; People v. Skufca, 176 P.3d
83, 86–87 (Colo. 2008); People v. Merklin, 80 P.3d 921, 924–25 (Colo. App. 2003);
People v. Thomeczek, 284 P.3d 110, 114–15 (Colo. App. 2011); People v. Cisneros,
2014 COA 49, ¶¶ 105–06, 108, 356 P.3d 877, 898; People v. Knapp, 2020 COA 107,
¶¶ 32–34, 44, 487 P.3d 1243, 1252–53.
¶80 The majority justifies discarding this foundational doctrine by pointing to
its inconsistent application and misuse in Colorado’s courts, see Maj. op. ¶ 41,
which I agree has occurred. But courts have misapplied CRE 404(b) tests as well.
The truth is that these are tough calls. The endless fight over whether evidence is
or is not admissible under CRE 404(b) will undoubtedly continue, no matter how
the test is worded. Thus, I see no utility in the majority’s ruling. Because the test
for abandoning well-established precedent, as articulated in Love, is not satisfied,
in my view, the majority violates the mandate of stare decisis with its ruling today.
IV. Conclusion
¶81 In sum, while I agree with the majority that the misapplication of res gestae
should be addressed, I believe that replacing the doctrine creates new problems
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while failing to address existing ones. I strongly disagree with the majority’s
decision because it will unreasonably burden the trial courts, disturb over a
century of precedent, and destabilize Colorado’s evidence jurisprudence—all for
the purpose of mere rebranding.
¶82 Therefore, instead of casting off the doctrine, I would simply clarify it. I
would hold, as we have held for nearly a century, that evidence integral to the
charged offense is relevant evidence admissible under the framework of
CRE 401–403 by way of res gestae. Additionally, I would (1) caution that evidence
admitted as res gestae must be essential to complete the story of the charged
offense; (2) point out that res gestae evidence is still subject to the limitations of
CRE 403; (3) encourage trial courts to provide a limiting instruction alongside res
gestae evidence, where appropriate; and (4) emphasize that the doctrine cannot be
used as a work-around to CRE 404(b). With this guidance, I believe we could not
only preserve but also improve the framework that helps trial courts identify
other-acts evidence under CRE 404(b).
¶83 Because I agree with the majority that reversal is required but believe that
abandoning the doctrine of res gestae is not, I respectfully concur in the judgment
only.
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