v. Rojas

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);

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  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

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 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)

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 (“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

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 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

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 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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