specially concurring.
I concur in the majority decision. I write separately to express concern and caution with excluding evidence denominated as res gestae from the requirements of CRE 404(b).
*569Because of the highly prejudicial nature of evidence admitted pursuant to CRE 404(b), the supreme court has established additional procedural requirements. For example, the trial court must determine the admissibility of other act evidence as a preliminary matter, before the jury is exposed to the evidence. In addition, the court must give a limiting instruction, both when the evidence is introduced and again when the jury receives final instructions. People v. Miller, 890 P.2d 84 (Colo.1995).
However, the supreme court, in cases predating the adoption of our rules of evidence, had determined that res gestae evidence was admissible without adhering to the procedures otherwise required for admission of evidence of other crimes or bad acts. See Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972). The exclusion has continued to be applied, without discussion, since the adoption of our rules of evidence. See People v. Quintana, 882 P.2d 1366 (Colo.1994); People v. Czemerynski, 786 P.2d 1100 (Colo.1990).
Further, evidence admissible as part of the res gestae now includes not just evidence of other acts that were substantially simultaneous in time and circumstance with the crime charged. It also includes evidence of events leading up to the crime charged, if needed to explain the setting, so that the context in which the charged crime occurred may be understood. People v. Quintana, supra; People v. Czemerynski, supra.
I recognize that CRE 404(b)’s procedural requirements of notice and a pre-trial determination are theoretically less important when the evidence of other acts is part of the res gestae. The reasoning is that the “close link” between the evidence and the charged crime is sufficient to give notice the evidence may be introduced at trial. See generally Brauser, “Intrinsic or Extrinsic”: The Confusing Distinction Between Inextricably Intertwined Evidence and Other Crimes Evidence Under Rule i-0í(b), 88 Nw. U.L.Rev. 1582,1614 (1993-94).
However, at least in Colorado, not all evidence denominated as res gestae is so closely linked to the crime charged to avoid the risk of surprise — particularly evidence not linked in time and circumstance. Cf. People v. Fears, 962 P.2d 272 (Colo.App. 1997)(evi-dence admissible as part of the res gestae, even though the two events were “somewhat remote in time”).
The risk of surprise is not my only concern with continuing to forego compliance with the requirements of CRE 404(b) merely because evidence is denominated as res gestae. For example, no limiting instruction is required for evidence of other acts admitted as res gestae, see People v. Quintana, supra. However, the importance of giving a limiting instruction, particularly when the other acts were not substantially simultaneous in time and circumstances, is no less than when the evidence is admitted under CRE 404(b). While not mentioned in more recent cases, the supreme court has noted that, even with res gestae evidence, it is the “better practice to instruct the jury regarding the limited purpose of the evidence at the time it [is] admitted ...” People v. Gladney, 194 Colo. 68, 72, 570 P.2d 231, 233 (1977).
In addition, evidence of another act is sometimes admitted merely because it falls within the definition of res gestae, even though it could easily be excised. The limitation under CRE 403 that res gestae evidence should not be admitted if its probative value is “substantially outweighed” by the risk of prejudice or confusion has not always provided sufficient protection from misuse of the doctrine. See generally Brauser, supra; E. Imwinkelried, Uncharged Misconduct Evidence, §§ 6:28-6:30 (1994).
Finally, the very concept of res gestae can be problematic. In Colorado, the term has not been consistently defined, compare People v. Rollins, 892 P.2d 866 (Colo.1995) with People v. Quintana, supra, and, more generally, the doctrine has confounded counsel and courts, often tending to create as much confusion as clarification. See generally Brau-ser, supra; E. Imwinkelried, Uncharged Misconduct Evidence, supra. Even when the term is uniformly defined, it is difficult analytically to keep the determination of whether evidence is relevant distinct from whether it is part of the res gestae. For example, in this case, the evidence in ques*570tion had independent relevance to show the intermediate inference of motive, as well as the ultimate inference of intent, and was therefore admissible under CRE 404(b), but that has no bearing on whether the evidence was part of the res gestae of the crime.
One solution that would address these concerns would be to require that all evidence of other acts, including “intrinsic” res gestae evidence as well, as other “extrinsic” evidence, be subject to the requirements of CRE 404(b). Such an approach is even more appropriate now that the “clear and convincing” standard previously applied under the common law for admitting evidence of other acts has been replaced under our rules of evidence by the lower “preponderance” standard. See People v. Garner, 806 P.2d 366, 370 (Colo.1991)(clear and convincing standard “was a common law rule of evidence and is no longer the controlling standard ... under the Colorado Rules of Evidence”); see generally Brauser, supra (under the lower standard, the rationale for not applying rule 404(b) is now gone).
In the meantime, we must be cautious in the use of the res gestae doctrine to insure that the exception does not swallow the rule — particularly when, as here, the two acts do not occur at a substantially simultaneous time. In' such circumstances, trial courts should apply a three-part evidentiary test.
First, trial courts should require that the other act have been part of events leading up to and “inextricably intertwined with” the crime charged. This means the events were more than merely prelude to and probative of the charged crime. Rather, the events must have been so closely connected to the criminal episode that they provide the context necessary for a full understanding of the crime. Cf. People v. Czemerynski, supra.
Second, trial courts should require that evidence of the other act itself be “inextricably intertwined” with those events. Thus, the evidence would not be admissible, at least as res gestae, unless its absence would awkwardly and artificially sanitize the remaining evidence, thereby creating an unfair risk of, for example, negatively impacting the credibility of the witness testifying or leaving the jury with a false impression concerning the crime charged. See Callis v. People, 692 P.2d 1045 (Colo.1984)(references to prior criminal conduct in an accused’s custodial statement that has no independent relevance should be eliminated if it would not significantly impair the substantive content of those parts of the statement otherwise admissible); see generally E. Imwinkelried, Uncharged Misconduct Evidence, supra, § 6:30.
Third, trial courts should continue to apply separately CRE 403. Hence, even if the evidence were not earlier excised, it could be excluded if its probative value were substantially outweighed by the danger of unfair prejudice or confusion. See People v. Garner, supra.
Such a test is consistent with existing precedent and would reduce existing confusion. At the same time, because trial courts retain the authority to introduce evidence showing, for example, motive, identity, or intent under CRE 404(b), compliance with the test would not lead to any appreciable reduction in admissible evidence.
Further, regardless of the test applied to determine that evidence of other crimes or bad acts can be admitted as part of the res gestae of the crime charged, trial courts should continue to follow “the better practice” of giving a limiting instruction when requested to do so. See People v. Gladney, supra.
In this case, the outer boundaries of res gestae are being strained. However, our review is limited to determining whether in characterizing the evidence as res gestae the trial court abused its discretion. People v. Moore, 902 P.2d 366 (Colo.App.1994), aff'd on other grounds, Moore v. People, 925 P.2d 264 (Colo.1996).
Evidence of defendant’s violent display of anger the night before'the killing could arguably be viewed as part of the context necessary to a full understanding of the crime. The evidence explains the source of lingering anger that was the genesis of the criminal episode, the absence of which might leave defendant’s actions on the night of the killing inexplicable except as an accident.
*571While the issue is close and the evidence would also fall within the scope of CRE 404(b), I cannot say the trial court abused its discretion in admitting the evidence as part of the res gestae of the crime charged, at least under existing precedent. Further, the trial court determined the admissibility of the evidence before trial, and defendant does not complain of the lack of a limiting instruction. I therefore concur.