     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.




                                     28
¶ 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”).


                                     29
¶ 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).




                                    30
¶ 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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