v. Rojas , 2020 COA 61 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 9, 2020
2020COA61
No. 15CA0126, People v. Rojas — Crimes —Theft — Colorado
Public Assistance Act — Food Stamps — Fraudulent Acts;
Evidence — Res Gestae
A division of the court of appeals considers whether a trial
court may admit evidence of a subsequent misrepresentation of
income as res gestae evidence of theft by deception of food stamps.
Relying on People v. Davalos, 30 P.3d 841 (Colo. App. 2001),
the majority concludes that the defendant’s subsequent
misrepresentation is admissible as res gestae evidence of the
defendant’s mental state and intent to knowingly provide false
information on food stamp applications.
The dissent concludes that the trial court reversibly erred in
admitting this evidence as res gestae, and it directs attention to the
shortcomings of the common law res gestae doctrine. C.A.R.
35(e)(3). The dissent explains that res gestae (1) is vague and
unhelpful; (2) adds nothing to the rules of evidence; and (3)
threatens to erode CRE 404(b). See Zapata v. People, 2018 CO 82,
¶ 70 (Hart, J., specially concurring) (“I have serious reservations
about the continued appropriateness of the res gestae doctrine and
believe that, in an appropriate case, this court should consider
whether to join other jurisdictions that have abandoned the
doctrine.”).
COLORADO COURT OF APPEALS 2020COA61
Court of Appeals No. 15CA0126
Larimer County District Court No. 13CR1903
Honorable Daniel J. Kaup, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brooke E. Rojas,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE RICHMAN
Graham, J.*, concurs
Furman, J., dissents
Announced April 9, 2020
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 This case has returned to this court on remand from our
supreme court.
¶2 In this case, a jury found defendant, Brooke E. Rojas, guilty of
two counts of theft under the theft statute after she misrepresented
her work income on a January 14, 2013, application for food
stamps and then received food stamp benefits for six months. A
division of this court reversed the judgment of conviction. The
majority concluded that Rojas “could only be prosecuted under
[section 26-2-305(1)(a), C.R.S. 2019, which criminalizes] the theft of
food stamps by a fraudulent act,” not under the general theft
statute. People v. Rojas, 2018 COA 20, ¶ 1 (Rojas I). Judge
Richman dissented from that determination and concluded that
Rojas was properly convicted under the theft statute. Id. at ¶ 66.
¶3 On review, the supreme court concluded that the “legislature
didn’t create a separate crime” of theft of food stamps by a
fraudulent act “by enacting section 26-2-305(1)(a).” People v. Rojas,
2019 CO 86M, ¶ 3. Thus, it reversed the division’s opinion and
remanded the case to our court “to consider any unresolved issues
raised by Rojas on direct appeal.” Id. at ¶ 28.
1
¶4 There are three issues that we must resolve in this opinion.
Rojas contends that the trial court (1) abused its discretion by
admitting, as res gestae, evidence that she misrepresented her work
income on an August 9, 2013, application for food stamps, and
therefore she is entitled to a new trial; (2) erred by allowing the
prosecution to aggregate her thefts into two different aggregate
counts under the theft statute; and (3) erred by not retroactively
applying a 2013 amendment to the theft statute to her case.
¶5 The dissent addressed these additional arguments for reversal
in the prior case. See Rojas I, ¶¶ 56-65 (Richman, J., dissenting).
¶6 A majority of this division now agrees with the result and
analysis set forth in the dissent for the reasons explained below.
Accordingly, the defendant’s conviction is affirmed, and the case is
remanded for resentencing and correction of the mittimus to reflect
two class 6 felony convictions.
I. Background
¶7 The jury heard the following evidence at trial:
 Rojas had originally applied to receive food stamps through
the Larimer County Department of Human Services
2
(Department) in August 2012 after she was laid off from her
job.
 In late December 2012, Rojas was hired as a restaurant
manager, but she did not start working until January 1, 2013.
 Also in late December 2012, she received a reapplication form
from the Department, and she filled out the form when she
received it.
 Because she had not yet received any income from her new job
as a restaurant manager, she reported on the form that she
had no work income and no employer.
 She began working approximately sixty hours per week as a
restaurant manager on January 1, 2013.
 On January 13, 2013, Rojas noticed that she had not mailed
the application form back to the Department. She then signed
and dated the application form and mailed it.
 Rojas received $1000 per month in food stamps from February
1, 2013, to July 31, 2013.
 During this same period, Rojas received over $29,000 in work
income, and the Larimer County Department of Human
Services sent monthly notices reminding Rojas that she was
3
required to report if her household’s gross monthly income
exceeded $3785.
¶8 Rojas acknowledged that if her monthly work income exceeded
$3785, she would not be eligible for food stamps. But she believed
this meant her net monthly work income, not her gross monthly
work income. She recognized that her gross monthly income
exceeded $3785 each month from February 1, 2013 to July 31,
2013. She never reported this to the Department.
¶9 In an August 9, 2013, application for food stamps, Rojas again
represented that she had no work income. A Department employee
questioned Rojas about the application. Rojas confirmed that the
only household income came from student loans and financial aid,
but she falsely stated she had no earned income.
¶ 10 Rojas was charged with one count of theft under the theft
statute, section 18-4-401, C.R.S. 2012, applicable until June 2013,
alleging that she had received food stamps between February 1,
2013, and June 1, 2013; and a second count of theft under section
18-4-401, C.R.S. 2013, alleging that she had received food stamps
on July 1, 2013.
4
¶ 11 At trial, Rojas asked the court to add a lesser nonincluded
offense instruction under section 26-2-305(2), which makes it a
crime for a participant in the food stamp program not to report a
change in that participant’s financial circumstances that affects
that participant’s eligibility for food stamps. The prosecution
agreed, and the court granted Rojas’s request.
¶ 12 A jury found Rojas guilty of two counts of theft, and one count
of violating section 26-2-305(2).
II. Res Gestae
A. Facts
¶ 13 As noted, Rojas misrepresented her work income on an August
9, 2013, application for food stamps, as she had done in January
2013. The prosecution did not specifically charge Rojas for the
August misrepresentation. But the trial court admitted the August
9, 2013, application, over defendant’s pretrial objection, as res
gestae of the charged offenses.
¶ 14 During closing arguments, the prosecution relied on the
evidence that Rojas had again misrepresented her work income on
the August 9, 2013, application as proof that Rojas intentionally
misrepresented her work income on the January 14, 2013,
5
application. Rojas contends the trial court abused its discretion in
allowing this evidence as res gestae.
B. Standard of Review
¶ 15 We review a district court’s evidentiary rulings for an abuse of
discretion. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009). A
district court abuses its discretion if its ruling is manifestly
arbitrary, unreasonable, or unfair, or is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence. Id.
¶ 16 If an argument is preserved by objection, we will reverse only if
any error was not harmless. Hagos v. People, 2012 CO 63, ¶ 12.
That is, we reverse if the error “substantially influenced the verdict
or affected the fairness of the trial proceedings.” Id. (quoting Tevlin
v. People, 715 P.2d 338, 342 (Colo. 1986)).
C. Applicable Law
¶ 17 Our supreme court has defined res gestae evidence as “matter
incidental to the main fact and explanatory of it, including acts and
words which are so closely connected therewith 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
6
 866, 872-73 (Colo. 1995) (quoting Woertman v. People, 804 P.2d
188, 190 n.3 (Colo. 1991)).
¶ 18 When evidence is part of a continuous transaction that
explains the setting in which the crime occurred, it is admissible as
part of the res gestae. Such evidence has as its purpose to “provide
the fact-finder with a full and complete understanding of the events
surrounding the crime and the context in which the charged crime
occurred.” People v. Davalos, 30 P.3d 841, 843 (Colo. App. 2001)
(quoting People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994)).
This evidence is “not subject to the general rule that excludes
evidence of prior criminality.” Id. (quoting Quintana, 882 P.2d at
1373). And it is “[e]vidence of criminal conduct that occurs
contemporaneously with or is part and parcel of the crime charged.”
Callis v. People, 692 P.2d 1045, 1051 n.9 (Colo. 1984).
D. Analysis
¶ 19 At trial, Rojas contended that she did not intentionally submit
false information in the January application because she thought it
was inquiring whether she had already received income from her
job, or otherwise misunderstood the Department requirement. But
the false application submitted in August could not simply be
7
explained away as a misunderstanding of the food stamp
requirements.
¶ 20 Financial applications that are unrelated to a charged crime
are admissible as res gestae if they are evidence of the defendant’s
mental state and intent to make false statements. Davalos, 30 P.3d
at 841.
¶ 21 In Davalos, the defendant was charged with theft after he lied
about not owning real estate in an application for Aid to Families
with Dependent Children. Id. at 843. His defense was that he
made a mistake in filling out the application. See id. at 844. So the
prosecution sought to admit evidence of unrelated applications that
the defendant had filed in which the defendant also lied about not
owning real estate, and the trial court admitted evidence of the
unrelated applications as res gestae. See id. The division in
Davalos concluded that evidence of the unrelated applications was
res gestae because it was evidence of the defendant’s intent and,
thus, provided “the [jury] with a full and complete understanding of
the events surrounding the crime and the context in which the
charged crime occurred.” Id. at 843 (quoting Quintana, 882 P.2d at
1373).
8
¶ 22 Because Rojas’s August application provided evidence of her
mental state and intent to knowingly provide false information on
food stamp applications, and it demonstrated that she had
knowingly received a thing of value of another by deception, it was
“part and parcel” of the crime charged. Callis, 692 P.2d at 1051
n.9; see also People v. Greenlee, 200 P.3d 363, 366-67 (Colo. 2009)
(holding that evidence of a plan is admissible under CRE 401 and
403 as circumstantial evidence of the defendant’s mental state).
¶ 23 Furthermore, the defendant’s additional act showed a pattern
and practice that the jury was entitled to hear. See People v.
Jaramillo, 183 P.3d 665, 667-68 (Colo. App. 2008) (holding that
evidence of the defendant’s jealousy was admissible as res gestae
evidence for an assault charge). The evidence of her false
application in August was properly admitted as res gestae.1
1The majority takes no position on the dissent’s urging the
supreme court to consider abolishing the res gestae doctrine.
Nonetheless, we note the following regarding the application of the
doctrine in this case to make certain the record is clear:
 The August 2013 application completed by Rojas could have
been offered, and probably admitted, into evidence under CRE
404(b) as evidence of intent, pattern, or absence of mistake.
Had it been admitted under the Rule, the procedural and
9
¶ 24 Since the evidence was admitted as res gestae, it was not error
for the court to deny defendant’s request for a limiting instruction.
See People v. Griffiths, 251 P.3d 462, 467 (Colo. App. 2010) (holding
that res gestae evidence can be admitted without a limiting
instruction).
III. Effect of 2013 Amendments to Theft Statute
¶ 25 Effective June 5, 2013, the General Assembly amended the
theft statute to provide that a theft of at least $2000 or more but
less than $5000 was classified as a class 6 felony, and a theft of
$5000 or more but less than $20,000 was classified as a class 5
felony. Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196.
Some of the alleged acts of theft by defendant took place before
June 5, 2013; others took place after June 5, 2013.
substantive protections alluded to by the dissent would have
been preserved.
 But the record in this case shows that, prior to the trial, the
judge held proceedings where the admissibility of the
document was raised and ruled on. The defendant objected to
the document’s admissibility, but the trial judge ruled initially
that the document was relevant evidence, and later specifically
ruled it was admissible as res gestae. Thus, unlike some res
gestae evidence referenced in the dissent, this information was
not suddenly or spontaneously sprung on defendant.
10
¶ 26 In an apparent recognition of the statutory amendment, the
prosecutor ultimately charged Rojas with (1) one count relating to
the alleged thefts of $3528 that occurred before June 5, 2013, and
charged those as a class 4 felony under the provisions of the former
statute; and (2) a second count relating to the alleged thefts of over
$2000 that occurred after June 5, 2013, and charged those as a
class 6 felony under the amended statute.
¶ 27 The jury was instructed on, and defendant was convicted of,
two separate counts of theft: a class 4 felony for the thefts occurring
before June 5, 2013, and a class 6 felony for the thefts occurring
after June 5, 2013. The trial court sentenced defendant to
concurrent sentences of three years of probation on each count.
¶ 28 Defendant contends that the prosecution was required to
aggregate the total amount of the thefts into one count because
they occurred within a six-month period. Defendant further
contends that the classifications under the amended theft statute
should be applied. Had the amounts been aggregated and
defendant charged in one count and convicted, they would have
resulted in one conviction for a class 5 felony.
11
¶ 29 We agree with defendant’s contention that the classifications
under the amended theft statute should apply to her convictions.
But we disagree with her remaining contentions.
¶ 30 Defendant was charged under section 18-4-401(4)(a) for
committing theft twice or more within a period of six months. That
statute permits, but does not require, the prosecution to aggregate
the thefts and charge them in a single count. Because aggregation
was not mandatory, the prosecution was not required to aggregate
defendant’s thefts into one count.
¶ 31 Defendant was convicted and sentenced after the June 2013
amendments to the theft statute. In People v. Stellabotte, 2018 CO
66, ¶ 36, the supreme court concluded that a defendant who
committed thefts prior to the 2013 amendment was entitled to
benefit from the amendment at sentencing insofar as it reduced the
classification of the offenses. We apply the rule announced in
Stellabotte. Thus, defendant's conviction for acts occurring before
the June 5, 2013, amendment should be reduced to a class 6
felony.
IV. Conclusion
12
¶ 32 Because we perceive no error in the admission of evidence or
the charge of two separate crimes of theft, we affirm the convictions
and remand for resentencing and correction of the mittimus to
reflect two class 6 felony convictions.
JUDGE GRAHAM concurs.
JUDGE FURMAN dissents.
13
JUDGE FURMAN, dissenting.
¶ 33 I conclude that the trial court erred in admitting evidence of
Rojas’s August 9, 2013, application for food stamps as res gestae
evidence of the charged offenses and that this error was not
harmless. Therefore, I respectfully dissent from the majority’s
decision to affirm Rojas’s theft conviction. I also write separately to
encourage our supreme court to abolish the res gestae doctrine for
several reasons. In my view, the doctrine (1) is vague and
unhelpful; (2) adds nothing to the rules of evidence; and (3)
threatens to erode CRE 404(b). See Zapata v. People, 2018 CO 82
¶¶ 70-79 (Hart, J., specially concurring).
I. Rojas’s Theft Conviction
¶ 34 A jury found Rojas guilty of two counts of theft, under the
theft statute, after she misrepresented her work income on a
January 14, 2013, application for food stamps and then received
food stamps for six months.
¶ 35 Rojas again misrepresented her work income on an August 9,
2013, application for food stamps. The prosecution did not charge
Rojas for this misrepresentation. Even so, the trial court admitted
14
evidence of the August 9, 2013, application as res gestae of the
charged offenses.
A. Res Gestae Evidence Defined
¶ 36 Our supreme court has defined res gestae evidence as “matter
incidental to the main fact and explanatory of it, including acts and
words which are so closely connected therewith 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)).
¶ 37 Res gestae evidence has also been defined as evidence “linked
in time and circumstances with the charged crime, or 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.” People v. Quintana,
882 P.2d 1366, 1373 (Colo. 1994) (quoting United States v. Williford,
764 F.2d 1493, 1499 (11th Cir. 1985)). And, it has been described
as “[e]vidence of criminal conduct that occurs contemporaneously
with or is part and parcel of the crime charged.” Callis v. People,
692 P.2d 1045, 1051 n.9 (Colo. 1984).
B. The August 9, 2013, Application
15
¶ 38 The prosecution charged Rojas with two counts of theft under
section 18-4-401(1), C.R.S. 2019. Under this section, a “person
commits theft when he or she knowingly obtains, retains, or
exercises control over anything of value of another without
authorization or by threat or deception” and intends “to deprive the
other person permanently of the use or benefit of the thing of
value.” § 18-4-401(1). The prosecution’s first count alleged that
Rojas had committed theft of food stamps between February 1,
2013, and June 4, 2013. And the second count alleged that Rojas
had committed theft of food stamps between June 5, 2013, and
July 31, 2013.
¶ 39 Before trial, Rojas moved to exclude evidence of her August 9,
2013, application for food stamps — in which she again
misrepresented that she had no work income — because she
submitted this application more than a week after committing the
charged crimes. The trial court denied her motion because it found
that the August 9, 2013, application was admissible as res gestae of
the charged crimes.
¶ 40 At trial, the prosecution introduced evidence that, in the
August 9, 2013, application for food stamps, Rojas again
16
misrepresented that she had no income. And during closing
arguments, the prosecution relied on the evidence that Rojas had
again misrepresented her work income on the August 9, 2013,
application as proof that Rojas intentionally misrepresented her
work income on the January 14, 2013, application.
C. The Error in Admitting the August 9, 2013, Application
¶ 41 I believe the trial court erred in admitting evidence of the
August 9, 2013, application as res gestae of the charged offenses.
¶ 42 According to the prosecution, the charged crimes were
completed on July 31, 2013. Thus, evidence of the August 9, 2013,
application was not contemporaneous with, linked in time or
circumstances with, or part and parcel of, the charged crimes. See
Quintana, 882 P.2d at 1373; Callis, 692 P.2d at 1051 n.9. It also is
not so closely connected to the charged crimes that it constitutes a
part of the same transaction. See Rollins, 892 P.2d at 872-73. That
is, the prosecution could complete the story of the charged crimes
to the jury without evidence of the August 9, 2013, application. See
Quintana, 882 P.2d at 1373.
¶ 43 Although the People contend that the “evidence of [Rojas’s]
representations of $0 in job income in August was a critical part of
17
the timeline because it prompted the entire investigation of this
case,” this does not mean that evidence of the August 9, 2013,
application is res gestae evidence. Res gestae evidence is evidence
of acts or words that are integral, natural, or necessary parts of the
crime, not of the investigation of the crime. Quintana, 882 P.2d at
1373; see also Rollins, 892 P.2d at 872-73.
D. Division Cases
¶ 44 The majority relies on People v. Davalos, 30 P.3d 841 (Colo.
App. 2001), and People v. Jaramillo, 183 P.3d 665, 667-68 (Colo.
App. 2008), for the proposition that the August 9 application was
admissible as res gestae because it was evidence of (1) Rojas’s
mental state, see Davalos, 30 P.3d at 843; and (2) a pattern and
practice by Rojas that the jury was entitled to hear, see Jaramillo,
183 P.3d at 667-68. I respectfully disagree with the divisions’
reasoning in Davalos and Jaramillo.
¶ 45 In Davalos, the defendant was charged with theft after he lied
about not owning real estate in an application for Aid to Families
with Dependent Children. 30 P.3d at 843. His defense was that he
made a mistake in filling out the application. See id. at 844. So,
the prosecution sought to admit evidence of unrelated applications
18
that the defendant had filed in which the defendant also lied about
not owning real estate. Id. The trial court admitted evidence of the
unrelated applications as res gestae. See id. The division in
Davalos concluded that evidence of the unrelated applications was
res gestae because it was evidence of the defendant’s intent and,
thus, provided “the fact-finder with a full and complete
understanding of the events surrounding the crime and the context
in which the charged crime occurred.” Id. (quoting Quintana, 882
P.2d at 1373).
¶ 46 In Jaramillo, the defendant was charged with second degree
assault after he struck his wife in the face. 183 P.3d at 667. The
defendant’s wife testified that the defendant was “always very angry
and very accusative” of her during their marriage and exhibited
“extreme jealousy” and “extreme possessiveness” toward her. Id.
The division in Jaramillo concluded that this testimony was
admissible as res gestae because it was “part and parcel of the
criminal episode for which defendant is charged.” Id. at 668.
¶ 47 In my view, it is difficult to square Davalos and Jaramillo with
our supreme court’s definition of res gestae, expansive though that
definition may be, and CRE 404(b). Under our supreme court’s
19
precedent, acts and words — such as unrelated applications or a
history of jealous and accusatory behavior — that are not “so
closely connected” with the charged crime that they “constitute a
part of the transaction” are not admissible as res gestae. Rollins,
892 P.2d at 872-73; Quintana, 882 P.2d at 1373.
¶ 48 Instead, such other acts or words that are not part of the
criminal transaction itself are admissible only under CRE 404(b).
Quintana, 882 P.2d at 1372-73; see also CRE 404(b) (“Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . .”).
E. The Error Was Not Harmless
¶ 49 I also believe that the trial court’s error in admitting evidence
of the August 9, 2013, application as res gestae was not harmless.
See Hagos v. People, 2012 CO 63, ¶ 12 (An error is harmless unless
it “substantially influenced the verdict or affected the fairness of the
trial proceedings.” (quoting Tevlin v. People, 715 P.2d 338, 341-42
(Colo. 1986))). “Put differently, [a defendant] is entitled to reversal if
20
there is ‘a reasonable probability that the error contributed to [his]
conviction.’” Yusem v. People, 210 P.3d 458, 469 (Colo. 2009)
(quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)); People v.
Zapata, 2016 COA 75M, ¶ 38, aff’d, 2018 CO 82.
¶ 50 The only issue at trial was whether Rojas obtained the food
stamps by deception. Rojas testified that she misrepresented her
work income to the Department by mistake. But during its closing
argument, the prosecution relied on the August 9, 2013, application
as proof that Rojas misrepresented her work income intentionally.
Because of this, I believe that there is a reasonable probability that
the trial court’s admission of the August 9, 2013, application
contributed to Rojas’s conviction. Yusem, 210 P.3d at 469.
¶ 51 The majority points out that the August 9, 2013, application
could have been properly “admitted[] into evidence under CRE
404(b) as evidence of intent, pattern, or absence of mistake.” Supra
¶ __ n.1. But that did not happen. The trial court admitted this
evidence only as res gestae. Because of this, we do not have a
limiting instruction directing the jury to consider the August 9,
2013, application only for a permissible, nonpropensity purpose.
See Kaufman v. People, 202 P.3d 542, 552-53 (Colo. 2009) (noting
21
that, if a trial court admits other act evidence under CRE 404(b)
and Spoto, it must instruct the jury on the limited purpose for
which the jury may consider the evidence). Consider how the trial
court explained its ruling regarding the admissibility of this
evidence after closing argument:
[I]n the Court’s ruling about the [August 9
application], prior to trial the Court clearly
found and ruled that it was not 404(b). Even
when defense counsel tried to submit a
limiting instruction later at the time of trial on
that issue, the Court again found specifically
[it] is not 404(b). [The] Court found it’s res
gestae and that could show a continuing
pattern and what was in the defendant’s mind
as that continued on past the charged time
frame that ended July 31, 2013.
¶ 52 I also note that the People do not ask us to affirm the trial
court’s ruling on the ground that the August 9, 2013, application
would have been admissible under CRE 404(b). See, e.g., People v.
Allen, 199 P.3d 33, 35 (Colo. App. 2007) (declining to address
contentions the defendant did not raise in his opening brief on
appeal).
¶ 53 Accordingly, I believe that the trial court’s error substantially
influenced the verdict, see Hagos, ¶ 12, constituting reversible
error.
22
II. The Supreme Court Should Address the Continued Viability of
the Res Gestae Doctrine
¶ 54 I also write to ask our supreme court, should it review this
case, to reconsider the scope and viability of the res gestae doctrine.
See C.A.R. 35(e)(3).
¶ 55 Nearly a century ago, Professor Wigmore said of res gestae:
The Latin expression “res gestae” or “res
gesta,” literally “things done” or “thing
transacted,” has long served as a
catchword . . . . And frequently also its
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. The phrase is
antiquated. By modern judges it is being
gradually discarded. It is superfluous, and
serves only to obscure the logic of the rules. It
should be left to oblivion.
Black’s Law Dictionary (11th ed. 2019) (quoting John H. Wigmore,
A Students’ Textbook of the Law of Evidence 279 (1935)).
¶ 56 But the modern trend Professor Wigmore predicted in 1935
has yet to make its way to Colorado. Nearly a century later, res
gestae lives on in our jurisprudence.
¶ 57 Members of the supreme court have recently expressed
reservations about “the continued appropriateness of the res gestae
doctrine” and have suggested that, “in an appropriate case, [the
23
supreme] court should consider whether to join other jurisdictions
that have abandoned the doctrine.” Zapata, 2018 CO 82, ¶ 70
(Hart, J., specially concurring). This case presents a perfect
opportunity for our supreme court to address the continued
viability and scope of this doctrine which, I believe, has long
outlived its usefulness.
¶ 58 For three reasons, I submit that Colorado should abolish the
res gestae doctrine. First, the doctrine is vague and unhelpful.
Second, it adds nothing to the rules of evidence. And third, it
threatens to erode CRE 404(b).
A. “Res Gestae” is Vague and Unhelpful
¶ 59 Res gestae is a term that often “obscure[s] what [it] purport[s]
to describe.” 1 Kenneth S. Broun et al., McCormick on Evidence
§ 190.9, Westlaw (8th ed. database updated Jan. 2020). As
Colorado case law now defines res gestae, it is difficult to determine
what, if any, limits the doctrine has.
¶ 60 As noted, our supreme court has described res gestae as
evidence that is “linked in time and circumstances with the charged
crime, or forms an integral and natural part of an account of the
crime, or is necessary to complete the story of the crime for the
24
jury.” Quintana, 882 P.2d at 1373 (quoting Williford, 764 F.2d at
1499).
¶ 61 But what, exactly, is an act that forms an “integral and
natural part of an account of the crime”? Id. How closely “linked”
must the evidence be? And what does it mean to be “linked in time
and circumstances”? See Zapata, ¶ 58 (quoting People v. Skufca,
176 P.3d 83, 86 (Colo. 2008)).
¶ 62 Unsurprisingly, a test with such blurry boundaries has led to
disparate results. Indeed, divisions of this court have held a wide
spectrum of evidence admissible as res gestae evidence, including
 evidence that a suspect fled to Michigan several weeks
after committing the charged offense, People v. Gee, 2015
COA 151, ¶¶ 28-30;
 evidence that a husband charged with assault against his
wife was “always very angry and very accusative” during
their marriage, Jaramillo, 183 P.3d at 667-68;
 evidence that a defendant charged with robbery of an
elderly woman also robbed a shoe store later that day,
People v. Lovato, 179 P.3d 208, 212-13 (Colo. App. 2007);
25
 evidence that a defendant charged with lying on an
application for certain aid had, at some point in the past,
lied on a different application for aid, Davalos, 30 P.3d at
843-44;
 evidence that a defendant charged with sexual assault on
a child had “large amounts of money” and had
encouraged the victim to “deal[] drugs on his behalf,”
People v. St. James, 75 P.3d 1122, 1124-25 (Colo. App.
2002); and
 evidence that a defendant charged with murder had
committed a burglary three days before the murder,
People v. Lucas, 992 P.2d 619, 624 (Colo. App. 1999).
See also H. Patrick Furman & Ann England, The Expanding Use of
the Res Gestae Doctrine, 38 Colo. Law. 35, 36-39 (June 2009)
(collecting cases).
¶ 63 Res gestae began as a theory of relevance for admitting
evidence of contemporaneous acts necessary for the jury to
understand the complete story of the crime. I worry that the
doctrine has metastasized beyond its original purpose and now
gives trial and appellate courts a license for “result-oriented
26
decision-making.” See Edward J. 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 (2010) (“The
looseness of the doctrine allows the courts to engage in ‘result-
oriented’ decision-making.”) (citation omitted).
B. Res Gestae Adds Nothing to the Rules of Evidence
¶ 64 Not only is the res gestae doctrine vague and unhelpful, it is
also unnecessary. The rules of evidence already set out a
framework for introducing what we now call “res gestae” evidence.
¶ 65 Evidence that is admitted as “res gestae” will usually, if not
always, be relevant evidence under CRE 401 because it will have
some “tendency to make the existence” of a consequential fact
“more probable or less probable than it would be without the
evidence.” CRE 401. After all, our supreme court has clarified that
res gestae evidence still must be relevant under CRE 401 to be
admissible. Skufca, 176 P.3d at 86.
¶ 66 If res gestae evidence, like all other evidence, must be relevant
to be admissible, I can see no reason for recognizing the doctrine in
the first place. See Zapata, ¶ 76 (Hart, J. specially concurring)
27
(“There is . . . good reason for this court, in an appropriate case, to
consider whether the [res gestae] doctrine has been rendered
obsolete by modern rules of evidence.”); see also People v. Greenlee,
200 P.3d 363, 368 (Colo. 2009) (“[T]here is no need to consider an
alternative theory of relevance, such as res gestae, where the
evidence is admissible under general rules of relevancy.”). And if
the “res gestae” evidence is actually evidence of a defendant’s “other
crimes, wrongs, or acts,” it should have to satisfy CRE 404(b).
C. Res Gestae Allows Parties to Circumvent CRE 404(b) and Spoto
¶ 67 Most important, res gestae also threatens to erode the
substantive and procedural requirements of CRE 404(b) and People
v. Spoto, 795 P.2d 1314 (Colo. 1990).
¶ 68 Res gestae now encompasses any “uncharged misconduct
evidence that is intertwined with the charged conduct,” Zapata,
¶ 58, and any uncharged act that is “necessary to complete the
story of the crime for the jury,” Skufca, 176 P.3d at 86. And our
supreme court has indicated that when “evidence is admitted as res
gestae evidence, it is not subject to the general rule excluding
evidence of prior criminality.” Id.
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¶ 69 Based on this precedent, two things are now apparent about
res gestae: (1) res gestae includes any uncharged misconduct
evidence that could be considered as “intertwined” with the charged
offenses, Zapata, ¶ 58 (citing Skufca, 176 P.3d at 86); and (2) res
gestae evidence is exempt from the substantive and procedural
requirements of CRE 404(b), id. I have serious concerns that res
gestae, as it is applied in Colorado case law, provides parties and
trial courts with an easy way to circumvent CRE 404(b). See
Zapata, ¶ 75 (Hart, J., specially concurring) (noting that “the label
‘res gestae’” too often “short-circuit[s] the evaluation called for in
Rule 404(b)”). That is exactly what happened here.
¶ 70 After all, much other act evidence is “linked in time and
circumstances” or “intertwined” with the charged offenses. So why
would parties go through the cumbersome procedures required
under CRE 404(b) and Spoto when they can admit the same
evidence as res gestae simply by showing that it is, somehow,
“linked in time and circumstances” with the charged offense? See
Zapata, ¶ 58 (majority opinion) (quoting Skufca, 176 P.3d at 86); id.
at ¶ 79 (Hart, J., specially concurring) (noting the “expansive use of
the [res gestae] doctrine in the trial courts”).
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¶ 71 To be sure, some of the evidence that is currently admitted as
res gestae would still be admitted under CRE 404(b) for a
permissible, nonpropensity purpose. But CRE 404(b) sets forth
important procedural and substantive safeguards that are absent
when a party introduces evidence under a res gestae theory.
¶ 72 CRE 404(b) requires the proponent of other acts evidence to
give pretrial notice to the opposing party that it intends to introduce
the evidence. It also requires the proponent to demonstrate, step by
step, why the evidence is relevant without relying on a propensity
inference. See Spoto, 795 P.2d at 1318. These procedures afford
the trial court opportunity to weigh the admissibility of evidence
before the heat of trial and give the opposing party opportunity to
request a limiting instruction. See CRE 105. And they will lead to
a more developed record about why the trial court admitted or
excluded the evidence. In contrast, when a party introduces
other-act evidence under a res gestae theory, it needs only to
convince the trial court that the evidence is in some way “linked in
time and circumstances” with the charged offenses. Quintana, 882
P.2d at 1373 (quoting Williford, 764 F.2d at 1499).
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¶ 73 In my view, any evidence of a defendant’s “other crimes,
wrongs, or acts” must satisfy CRE 404(b) and Spoto, whether or not
the evidence is “linked in time and circumstances” with the charged
offense. Accord United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir.
2000) (“The fact that omitting some evidence would render a story
slightly less complete cannot justify circumventing [Fed. R. Evid.
404(b)] altogether. . . . We see no reason to relieve the government
and the district court from the obligation of selecting from the
myriad of non-propensity purposes available to complete most any
story.”).
¶ 74 I also note that scholars have routinely criticized the res
gestae doctrine on similar grounds. See Clifford S. Fishman &
Anne T. McKenna, Jones on Evidence § 17:14, Westlaw (7th ed.
database updated July 2019); Kenneth W. Graham, Jr., Federal
Practice and Procedure: Federal Rules of Evidence § 5246, Westlaw
(2d ed. database updated Aug. 2019); David P. Leonard, New
Wigmore on Evidence: Evidence of Other Misconduct § 5.4 (2d ed.
2019) (“When courts characterize uncharged misconduct as
intertwined with or intrinsic to the charged activities, they often fail
to take seriously the dangers associated with misconduct
31
evidence.”); 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, 313 (Fall 2000) (Res gestae is
“[u]nsatisfactory, first, because it is obscure and indefinite, and
needs further definition and translation before either its reason and
its scope can be understood; and secondly, because the very
looseness and obscurity lend too many opportunities for its
abuse. . . . [T]he result is only to make rulings on evidence
arbitrary and chaotic, when we ignore the correct purposes of
admission and substitute an indefinite and meaningless phrase of
this sort.” (quoting 1 John Henry Wigmore, A Treatise on the System
of Evidence in Trials at Common Law § 218, at 721 (1904)));
Imwinkelried, 59 Cath. U. L. Rev. at 729-30 (noting the extensive
scholarly criticism of res gestae).
¶ 75 And, several jurisdictions have limited the doctrine, see United
States v. Green, 617 F.3d 233, 239-49 (3d Cir. 2010); Bowie, 232
F.3d at 926-29; State v. Nelson, 791 N.W.2d 414, 419-24 (Iowa
2010), while others have abandoned it, see United States v. Gorman,
613 F.3d 711, 717-20 (7th Cir. 2010); State v. Fetelee, 175 P.3d
709, 735 (Haw. 2008); State v. Kralovec, 388 P.3d 583, 587 (Idaho
32
2017) (“[W]e decline to perpetuate the use of the res gestae doctrine
in Idaho.”); People v. Jackson, 869 N.W.2d 253, 268 (Mich. 2015)
(“[T]here is no ‘res gestae exception’ to [Mich. R. Evid.] 404(b).”);
State v. Rose, 19 A.3d 985, 988 (N.J. 2011) (“[T]he doctrine of res
gestae no longer has vitality in light of the formal Rules of
Evidence.”). I believe Colorado should join these latter jurisdictions.
III. Conclusion
¶ 76 In sum, res gestae is vague, unnecessary, and threatens to
erode CRE 404(b). For these reasons, I ask our supreme court,
should it review this case, to join the growing number of
jurisdictions that have abolished the doctrine. See C.A.R. 35(e)(3).
¶ 77 And, because I conclude that the trial court reversibly erred by
admitting evidence of the August 9, 2013, application as res gestae,
I respectfully dissent from the majority opinion affirming Rojas’s
judgment of conviction.
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