Brooke E. Rojas, Petitioner v. The People of the State of Colorado, Respondent
No. 20SC399
Supreme Court of Colorado, En Banc
February 21, 2022
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA126
Attorneys for Petitioner: Megan A. Ring, Public Defender Rachel K. Mercer, Deputy Public Defender.
Attorneys for Respondent: Philip J. Weiser, Attorney General Paul Koehler, Assistant Attorney General.
JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE MÁRQUEZ, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.
CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, concurred in the judgment only.
OPINION 3
HOOD, JUSTICE.
¶1 Today, we discard a troublesome relic from Colorado's common law of evidence: the res gestae doctrine.
¶2
Although it has morphed over time, the res gestae doctrine
these days is often used as a shortcut for admitting
character evidence about criminal defendants. While we seek
to ensure that defendants are tried for the crimes with which
they've been charged and not for seeming to have a
propensity to engage in criminal conduct, "[c]riminal
occurrences do not always take place on a sterile
stage." People v. Lobato,
4
¶3 It is time for us to bury res gestae. This court's adoption of the Colorado Rules of Evidence more than four decades ago should have rendered the res gestae doctrine obsolete. Under the Rules, if evidence is probative of a material fact, then it is relevant and presumptively admissible. CRE 401, 402. As a general matter, only when the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice does it need to be excluded. CRE 403. And uncharged misconduct evidence that meets certain requirements can be admitted to show, for example, that a defendant had the motive, opportunity, or intent to commit the charged offense. CRE 404(b). By continuing to rely on res gestae as a standalone basis for admissibility and allowing the vagueness of res gestae to persist next to these more analytically demanding rules of relevancy, we have created a breeding ground for confusion, inconsistency, and unfairness. ¶4 Therefore, we join other jurisdictions that have abandoned this always- nebulous and long-superfluous doctrine. In the case at hand, our decision to abolish the res gestae doctrine in criminal cases prompts us to reverse the judgment of the court of appeals and remand for a new trial.[1]
5
¶5
This is the second time we have reviewed this case. See People v. Rojas,
¶6 Rojas initially applied for food stamp benefits from the Larimer County Department of Human Services (the "Department") in August 2012 when she had no income. She received a recertification letter in December, which she submitted in mid-January 2013, indicating that she still had no income. And although she had not yet received a paycheck when she submitted the recertification letter, Rojas had started a new job on January 1.
¶7 Rojas continued receiving food stamp benefits every month until July, when she inadvertently allowed them to lapse. She reapplied in August 2013. Although still working, Rojas reported that she had no income. The Department checked Rojas's employment status in connection with the August application and learned that she was making about $55, 000 a year (to support a family of seven). The Department determined that Rojas had received $5, 632 in benefits to which she was not legally entitled.
¶8 The prosecution charged Rojas with two counts of theft under section 18-4-401(1)(a), C.R.S. (2021). The first count was for the benefits she
6
received between February 1, 2013, and June 4, 2013; the second count was for the benefits she received between June 5, 2013, and July 31, 2013.[2]
¶9 At trial, Rojas's defense was that she lacked the requisite culpable mental state-she didn't knowingly deceive the government; she just misunderstood the forms. The prosecution's theory was that Rojas's misstatements on the January recertification form were not an oversight but rather a knowing attempt to receive benefits to which she wasn't legally entitled.
¶10 Before trial, Rojas objected to the prosecution's proposed admission of the August 2013 application because it exceeded the time period of the charged offenses and didn't lead to the receipt of any benefits. The prosecution countered that the application was admissible as res gestae evidence-to show how the investigation began-and as evidence of specific intent. The court found it relevant as circumstantial evidence of Rojas's mental state.
¶11 On the morning of trial, Rojas renewed her objection to introduction of the August 2013 application, again asserting that it was irrelevant and unfairly
7
prejudicial. She further argued the application was impermissible 404(b) evidence. And she requested a limiting instruction to explain to the jurors that they may consider the application "for purposes of explaining how the investigation of Ms. Rojas began only and . . . not . . . for any other purpose." The court determined that the application was not 404(b) evidence, was relevant to the charged offenses, and was admissible. The jury received no limiting instruction.
¶12 The prosecution questioned Rojas about the August 2013 application during her testimony, highlighting that she knew she was employed at that time yet still indicated on the form that she was not. The prosecution also discussed the August 2013 application in its opening and closing arguments as evidence of Rojas's intent.
¶13
A jury convicted Rojas of two counts of theft under the
general theft statute for obtaining food stamp benefits to
which she was not legally entitled. Rojas appealed, and a
division of the court of appeals vacated the convictions. People v. Rojas,
¶14
On remand, the division addressed the three remaining
contentions and affirmed Rojas's convictions, but it
remanded for resentencing and correction of the mittimus to
reflect statutory changes that reduced the felony level of
her offenses. People v. Rojas,
¶15 After identifying the standard of review, we describe the evolution of the res gestae doctrine in Colorado. We then consider some of the criticism of the doctrine before concluding that the modern Rules of Evidence have rendered the res gestae doctrine superfluous. In the interest of providing guidance going forward, we also discuss what should trigger 404(b) scrutiny under the modern Rules.
¶16 We review a trial court's evidentiary rulings for an
abuse of discretion. Venalonzo v. People,
¶17
In reviewing a trial court's ruling, appellate courts
ordinarily adhere to precedent under the doctrine of stare
decisis. See Love v. Klosky,
¶18
Res gestae has deep roots in American common law. The Supreme
Court first referenced the doctrine in 1817, Leeds v.
Marine Ins. Co.,
Res gestae may be broadly defined as matter incidental to a main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of it, and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of participants; the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character.
Denver City Tramway Co. v. Brumley,
¶19
In these early formulations, res gestae served primarily as
an exception to the general prohibition against hearsay. 2
Kenneth S. Broun et al., McCormick on Evidence § 268 (Robert P. Mosteller ed., 8th ed. 2020). Courts
admitted statements made during or adjacent to the charged
crime because it was assumed that the spontaneity of such
statements rendered them reliable. See Archina v.
People,
¶20
In this way, res gestae statements were treated much like the
later-codified hearsay exceptions for present sense
impressions, excited utterances, and then-existing mental
states. See CRE 803(1)-(3); People v.
Dement,
¶21
Even in its hearsay heyday, however, the vagueness of res
gestae earned stiff rebukes from esteemed scholars and
jurists. Professor Wigmore lamented that res gestae's
"indefiniteness has served as a basis for rulings where
it was easier for the judge to invoke this imposing catchword
than to think through the real question involved." Res Gestae, Black's Law Dictionary (11th ed.
2019) (quoting John H. Wigmore, A Students' Textbook
of the Law of Evidence 279 (1935)). Judge Learned Hand
was equally blunt, observing that res gestae "is a
phrase which has been accountable for so much confusion that
it had best be denied any place
whatever in legal terminology; if it means anything but an
unwillingness to think at all, what it covers cannot be put
in less intelligible terms." United States v.
Matot,
¶22
Despite these misgivings, res gestae gradually seeped into
the realm of uncharged misconduct evidence. Like res gestae,
the law limiting the use of uncharged misconduct evidence has
a long history in American jurisprudence. Because such
evidence "has inhering in it damning innuendo likely to
beget prejudice in the minds of jurors" and "tends
to inject collateral issues into a criminal case which are
not unlikely to confuse and lead astray the jury," Stull v. People,
¶23
Thus, a conflict emerged. While the scope of res gestae
evidence expanded, the common law governing other-acts
evidence remained exclusionary. "Prior to the adoption
of the Colorado Rules of Evidence, . . . Colorado decisional
law adhered to the exclusionary principle that, subject to
narrow exceptions, evidence of other crimes was not
admissible as proof of the accused's guilt with respect
to the crime charged." People v. Garner, 806
P.2d 366, 369 (Colo. 1991). When a trial court admitted
other-acts evidence (or "similar transaction
evidence," as this court then termed it), we required
the court to employ a set of procedural protections
focusing the jury on the limited purpose for which the
evidence was received.[4] Stull,
(1) is there a valid purpose for which the evidence is offered? (2) is the evidence relevant to a material issue of the case? (3) does the probative value of the evidence of the prior act, considering the other evidence which is relevant to the issue, outweigh the prejudice to the defendant which would result from its admission?
People v. Honey,
¶24
Res gestae became a convenient way to bypass the more
rigorous requirements of Stull and its common-law
progeny. It became a catchall for admitting all sorts of
misdeeds and character evidence -no matter how attenuated
in time, place, or manner-without carefully considering
whether it was intrinsic or extrinsic to the charged crime. See Lancaster v. People,
¶25 Although the modern Rules we adopted in 1980 said nothing about res gestae, they broadly favored the admission of relevant evidence. Under Rules 401 and 402, unless otherwise prohibited by constitution, rule, or statute, all evidence is admissible if it tends to make the existence of any consequential fact more or less probable. And Rule 403 provides that otherwise relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Emphases added.)
¶26 Furthermore, the Rules of Evidence included Rule 404, which now governs the admissibility of character evidence. Under 404(a), with certain limited exceptions, "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." And 404(b) provides that "[e]vidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character" but may be admissible for purposes such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule 404(b)(3) requires that, in criminal cases, the prosecution provide the court and the defendant with reasonable notice of its intent to introduce other-acts evidence in writing before the trial. The notice must include the permitted purpose for which admission of the evidence is sought and the reasoning supporting that purpose. CRE 404(b)(3)(B).[5]
¶27
In People v. Spoto,
¶28 And so, under the framework of the Rules, courts can admit uncharged misconduct evidence for almost any non-propensity purpose:
In contrast to the former narrowly defined exceptions to a general rule of exclusion, we have therefore made clear that Rule 404(b) identifies a single purpose for which other-crime evidence must always be excluded and delineates a non-exclusive list of examples of other reasons for which other-crime evidence is not to be excluded if it is otherwise admissible according to the rules of relevance. . . . The traditional litany of narrowly circumscribed exceptions of pre-Rules decisional law . . . no longer limits the admissibility of other-crime evidence.
Williams, ¶¶ 11-12,
¶29 Despite these developments, the res gestae doctrine remained. Unsurprisingly, courts wrestling with whether an act is res gestae evidence or 404(b) evidence have reached inconsistent and often unpredictable results.
¶30 Consider, for example, People v. Hickam, 684 P.2d 228, 230-31 (Colo. 1984), in which the prosecution charged the defendant with felony murder for a death that occurred during the defendant's flight from an attempted robbery. This court concluded evidence of the contemporaneous underlying robbery was admissible res gestae evidence of felony murder. Id. at 231-32. However, because one element of felony murder is proof that the defendant committed (or attempted to commit) one of the statutorily enumerated predicate crimes, evidence of the predicate was plainly relevant to proving felony murder and not unfairly prejudicial. Thus, we need not have relied on res gestae because evidence of the robbery was admissible under Rules 401-403.
¶31 Now compare Hickam-where the proposed res gestae evidence and the charged offense occurred contemporaneously-to the following two examples involving more attenuated temporal connections between such evidence and the charged offenses.
¶32
In People v. Czemerynski,
¶33 In Skufca, police officers arrested the defendant on a warrant for traffic offenses and, during a search incident to arrest, found drugs and drug paraphernalia in his car. 176 P.3d at 84. Earlier in the day, the defendant had sold drugs to an undercover DEA agent. Id. The prosecution sought to introduce testimony about the drug transaction as res gestae evidence to help prove that the defendant knowingly possessed the drugs that were later found in his car. Id. at 85. The trial court found the testimony critical to the jury's understanding of the events surrounding the arrest and therefore admissible to explain the circumstances. Id. This court agreed with the trial court that the earlier drug transaction was admissible res gestae evidence because it was "relevant and it helped establish for the jury the context and circumstances surrounding the crime with which [the defendant] was charged." Id. at 86. However, it was an act separate from the charged offense, and its admissibility should have been considered under 404(b) and Spoto. Moreover, under 404(b), the defendant would have been entitled to an instruction limiting the jury's use of the evidence to the prosecution's stated purpose.
¶34 The preceding examples demonstrate how we have muddied the law by analyzing admissibility under res gestae instead of the Rules of Evidence. A more recent decision from this court seems to have at least partially presaged the move we make today.
¶35
In People v. Greenlee,
¶36
In his dissent to the division's opinion here, Judge
Furman rightly observed that res gestae often
"obscure[s] what [it] purport[s] to describe." Rojas II, ¶ 59,
¶37
Not only is the doctrine vague, it's harmful. Because of
its ambiguity, res gestae-which was never more than a theory
of relevance, Greenlee,
¶38
The "completing the story" rationale to admit
other-acts evidence "create[s] the greatest risk of
subverting the limitations that ought to apply whenever the
jury is informed of a person's uncharged
wrongdoing." David P. Leonard, New Wigmore on
Evidence: Evidence of Other Misconduct § 5.3.2 (2d
ed. Supp. 2020). This application of res gestae risks being
the exception that swallows Rule 404(b). For example, in
Lucas v. People,
¶40
Colorado's experience is not unique. Many jurisdictions
have determined that res gestae is incompatible with the
modern Rules. See, e.g., People v. Jackson,
¶42 We recognize that abolishing the res gestae doctrine offers no magic wand. It won't eliminate the line-drawing problems inherent in deciding what evidence warrants 404(b) review. After all, Rule 404(b) requires trial courts to evaluate, in the first instance, when "other" crimes, wrongs, or acts are at issue. Therefore, some ambiguity remains regarding when the charged crime ends and "other" acts begin.
¶43
Furthermore, Rule 404(b) applies only when the trial court
determines that uncharged misconduct evidence supports an
improper inference of the defendant's character. See Old Chief v. United States,
¶44 We join those courts that generally recognize an
intrinsic-extrinsic distinction, with extrinsic acts falling
under Rule 404(b) and intrinsic acts falling outside the
Rule's scope. See, e.g., United States v.
Green,
¶45
Examples from jurisdictions already operating in the post-res
gestae world are instructive. In United States v.
Roberson, No. 21-102 (JDB),
¶46 Using this framework, the court first summarized the communications sent before the video. Relying on the prosecution's summary, the court described that the first email was the defendant initiating contact with Email Address 2, the second was Email Address 2 responding and directly soliciting the criminal act, and the third email was the defendant sending the video that formed the basis of the charged offense to Email Address 2. Id. This thread of communication all occurred within minutes. Id. The court concluded that these emails "leading up to and immediately surrounding" transmission of the video were intrinsic evidence because they occurred contemporaneously with the charged offense and facilitated its commission and were not, therefore, constrained by Rule 404(b). Id.
¶47 The court then analyzed the emails sent after the video, some
sent more than a year later, concluding that "[i]t
stretches credulity to call . . . two messages sent fourteen
months apart contemporaneous with one another." Id. Further, because the court couldn't
"see how an act occurring well after the charged crime
could 'assist in bringing [the crime] about, '" it
concluded the post-video emails were not intrinsic to the
charged crime. Id. at *5 (quoting United States
v. Cox, No. CR-16-08202-001-PCT-ROS,
¶48 Finally, the court rejected the government's argument that all the emails between the defendant and Email Address 2 "provide[d] necessary and indispensable context for [the defendant's] conduct," concluding that "such a broad view of 'intrinsic' . . . is too 'flimsy' a basis for jettisoning Rule 404(b) entirely." Id. The court concluded the post-video emails were nonetheless admissible under Rule 404(b) because they were probative of non-propensity purposes, relevant to a material issue other than the defendant's character, and not unduly prejudicial. Id. at *5-7.
¶49 The court in United States v. Shea,
¶50 At the defendant's trial for the earlier, attempted armed robbery, the prosecution sought to introduce the black revolver. Id. at 38-39. The trial court admitted the revolver under Rule 404(b). Id. at 39. The appellate court rejected this reasoning, concluding the revolver alone was not 404(b) evidence and its admissibility should have been evaluated under Rules 401 and 403. Id. The court concluded that the revolver seized from the defendant during his arrest was "intrinsic, direct evidence" that he used the same revolver during the attempted robbery for which he was on trial. Id. at 39-40. The court further concluded that admitting the revolver into evidence was not unfairly prejudicial (as opposed to evidence of the second robbery, which would have been an extrinsic act subject to 404(b) analysis). Id. at 40.
¶51 To further elucidate the relevant concepts, consider a purely hypothetical addition to Shea. Imagine the defendant had gone to the bank the day before the alleged robbery to cash a check, and the prosecution sought to introduce evidence of that visit at trial to suggest that the defendant could have been casing the bank. Because evidence of that visit neither directly proves the charged offenses nor occurred contemporaneously with them and facilitated their commission, that evidence is not intrinsic. Further, cashing a check at a bank does not implicate character, so admission of that evidence is not governed by 404(b). The court is left to consider the admissibility of that evidence pursuant to Rules 401-403.
¶52 With these examples in mind, we hold that, in evaluating whether uncharged misconduct evidence triggers Rule 404(b), a trial court must first determine if the evidence is intrinsic or extrinsic to the charged offense. Intrinsic acts are those (1) that directly prove the charged offense or (2) that occurred contemporaneously with the charged offense and facilitated the commission of it. Evidence of acts that are intrinsic to the charged offense are exempt from Rule 404(b) because they are not "other" crimes, wrongs, or acts. Accordingly, courts should evaluate the admissibility of intrinsic evidence under Rules 401-403. If extrinsic evidence suggests bad character (and thus a propensity to commit the charged offense), it is admissible only as provided by Rule 404(b) and after a Spoto analysis. Conversely, if extrinsic evidence does not suggest bad character, Rule 404(b) does not apply and admissibility is governed by Rules 401-403.[8]
¶53
Because Rojas preserved her objection to the court's
allegedly non- constitutional error, we review any error for
ordinary harmlessness. Hagos v. People,
¶54 The prosecution charged Rojas with two counts of theft for
her conduct between February 1, 2013, and July 31, 2013. Thus, Rojas's August application, filed after the
relevant time period, neither directly proved the prior
thefts nor occurred contemporaneously with them and
facilitated their commission. Rojas's filing of the
August application does not satisfy our definitions for
intrinsic evidence and is, therefore, an extrinsic,
"other act." Moreover, evidence that Rojas
knowingly submitted a later application containing false
information about her income invites the inference that she
is a "bad" person who lies on applications and so
she must have knowingly lied on the applications at issue in
her trial. Therefore, because the August application is
extrinsic to the charged crimes and
invites a propensity inference, its admissibility is governed
by Rule 404(b). The trial court abused its discretion by
admitting the evidence without the required Spoto
analysis and accompanying procedural safeguards. See People v. Chavez,
¶55
The error was not harmless. The only issue at trial was
whether Rojas obtained the food stamp benefits by deception. "To prove the element of deception, the prosecution must
prove that the defendant made a misrepresentation, which is
'a false representation of a past or present fact,'
and that 'the victim parted with something of value in
reliance upon [the defendant's]
misrepresentation[].'" People v. Vidauri,
¶56 The prosecution relied on the August application during closing arguments. And, even if this evidence might have been admissible under Rule 404(b) for some non-propensity purpose, the absence of a limiting instruction permitted the jury to misuse the evidence. We believe there is a reasonable probability that admitting the August application, without any 404(b) safeguards, affected the fairness of the trial by allowing the jury to convict Rojas based on implied propensity-she misrepresented her income in August; therefore, she likely did it on the earlier applications too.
¶57 The judgment of the court of appeals is reversed, and the case is remanded to the trial court for a new trial.
CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, concurred in the judgment only.
¶58 I agree with the majority that the trial court improperly admitted Rojas's August application as res gestae evidence. And I further acknowledge that the doctrine of res gestae has, at times, been misconstrued in Colorado's courts. But I disagree with the majority's conclusion that jettisoning the doctrine will solve any problems-it won't. Regardless of whether we call evidence res gestae, intrinsic evidence, or other-acts evidence under CRE 404(b), courts will always be confronted with the difficult question of when the crime starts and stops. In other words, no matter what the doctrine is called, courts still must parse out when an act begins to constitute an "other act." Because that question will always exist, I fear that the majority's decision is only going to cause a needless explosion of CRE 404(b) hearings, furthering the burden on Colorado's overworked trial courts. And equally importantly, such broad action violates stare decisis. As the majority acknowledges, res gestae has been a part of Colorado law for well over a century. See Maj. op. ¶ 18. Yet, today, it boldly proclaims that res gestae must be discarded. I strongly, but respectfully, disagree. Therefore, I concur in the judgment only.
¶59
Simply put, res gestae is a label used to describe a subset
of relevant evidence. As such, we have said that res gestae
is a theory of relevance, not an alternative theory of
admissibility that escapes the scrutiny of CRE 401, 402, and
403. People v. Quintana,
¶60
Res gestae evidence is "linked in time and circumstances
with the charged crime, . . . forms an integral and natural
part of an account of the crime, or is necessary to complete
the story of the crime for the jury." Id. at
1373 (quoting United States v. Williford, 764 F.2d
1493, 1499 (11th Cir. 1985)). Moreover, the doctrine includes
"acts and words which are so closely connected" to
the charged offense "as to constitute a part of the
transaction, and without knowledge of which the main fact
might not be properly understood." People v.
Rollins,
¶61
The majority and I seem to agree that in order to elucidate
the definition of res gestae, it is essential to distinguish
CRE 404(b) and the specific types of evidence that the Rule
endeavors to protect against. Under CRE 404(b)(1), parties
are prohibited from introducing evidence of "any other
crime, wrong, or act . . . to prove a person's character
in order to show that on a particular occasion the person
acted in conformity" therewith. This Rule aims to
protect defendants against unfairly prejudicial
"propensity" arguments-arguments that use evidence
of a defendant's "bad" character to show that
she acted in line with her character and therefore committed
the charged offense. See Masters v. People, 58 P.3d
979, 995 (Colo. 2002); Stull v. People, 344 P.2d
455, 458 (Colo. 1959), superseded by rule as stated in
People v. Williams,
¶62
By its plain language, CRE 404(b)(2) makes clear that such
evidence is admissible for purposes besides propensity, such
as "proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident." However, because the Rules of Evidence aim to
avoid unfairly prejudicing defendants, a proponent of
other-acts evidence faces additional procedural hurdles. The
proponent must provide opposing counsel with pretrial notice
of intent to introduce other-acts evidence. CRE 404(b)(3). The trial court must make multi-part evidentiary findings to
determine whether the evidence is or is not admissible under
CRE 404(b). See Kaufman v. People,
¶63
The distinction between res gestae and CRE 404(b) is visible
in the plain language of the Rule itself. While res gestae
evidence is integral to the charged crime, CRE 404(b)
proscribes introducing evidence of "other" acts,
crimes, or wrongdoings. And so, under a plain reading of CRE
404(b), only evidence of acts, crimes, or wrongdoings that
are independent from the charged offense must be
presented with special caution for fear of unfair prejudice
to the defendant. Quintana,
¶64
Therefore, res gestae evidence and CRE 404(b) evidence are
different types of evidence. On the one hand, CRE 404(b)
protects defendants from the introduction of evidence that is
extrinsic, albeit relevant, to the charged offense. On the
other hand, the doctrine of res gestae recognizes that the
prosecution may introduce relevant evidence of acts intrinsic
to the charged offense. This separation makes sense because
the purpose underlying CRE 404(b) is not served by excluding
res gestae evidence. While a jury may misuse extrinsic
evidence for propensity purposes, evidence of acts admitted
under res gestae are themselves part of the charged
offense; thus, their introduction does not offend the
propensity rule. See Quintana,
¶65 The majority criticizes res gestae as being too confusing and too malleable. See Maj. op. ¶¶ 36-38. It worries that res gestae is used to sneak in the type of propensity evidence that CRE 404(b) is meant to exclude. See id. at ¶¶ 2, 24, 38. Despite the doctrinal distinction between CRE 404(b) and the res gestae doctrine, I take the majority's point that Colorado's courts have, at times, admitted evidence under res gestae when it should have been protected by the safeguards of CRE 404(b). In fact, I agree.
¶66
To be frank, this case presents a clear example of other-acts
evidence that was improperly admitted as res gestae evidence. The People charged Rojas for unlawfully receiving food stamps
from February 1, 2013, to July 31, 2013. The separate August
application was (1) removed in time and (2) inessential to
complete the story of the charged offense. See Rollins,
¶67 With that said, I agree with the majority that the proper course of action here is reversing Rojas's conviction.[1] But, in my view, it is improper to use this case to disregard a legal doctrine that has existed for over a century, and I believe such action will cause (at best) confusion and (at worst) misuse. Instead, I would strengthen the already-existing guardrails surrounding the doctrine. First, I would emphasize that res gestae evidence must be essential to the commission of the charged crime. Second, I would caution that, even if the proffered evidence is essential, it is not admissible if it is unfairly prejudicial under CRE 403. Third, where appropriate, I would encourage trial courts to provide CRE 105 limiting instructions alongside evidence admitted as res gestae.[2] Finally, I would stress that the doctrine of res gestae is not an exception to skirt the protections of CRE 404(b): Other-acts evidence that is truly extrinsic, such as the evidence of Rojas's subsequent application in this case, must be safeguarded by pretrial notice, a hearing, and, where appropriate, a limiting instruction.
¶68 I believe that the majority's decision to casually say "farewell" to res gestae is ill-advised for three reasons. First, res gestae is merely a framework that assists courts in making difficult and fact-intensive evidentiary decisions. There will always be the question of when a crime starts and when it stops; the majority's attempt to answer that question just shifts the analysis to CRE 404(b). Second, the majority's holding today imposes an unreasonable burden on Colorado's trial courts by needlessly pushing them to analyze vast amounts of evidence at a pretrial stage under the rubric of CRE 404(b). Finally, to discard res gestae violates the mandate of stare decisis and disrupts the rule of law.
¶69 The majority concludes that the solution to res gestae's misuse is to rebrand the doctrine.[3] See Maj. op. ¶¶ 44-52. Pursuant to the majority's new rule, a reviewing court must determine what constitutes the "charged offense." Id. at ¶ 44. Evidence of acts that "implicate" the defendant's character but (1) directly prove the charged offense, or (2) are performed contemporaneously with the charged offense and therefore facilitate its commission will be admissible as "intrinsic" evidence under the framework of CRE 401-403. Id. at ¶¶ 43-44. Evidence of acts that implicate the defendant's character but are "extrinsic"-that is, they do not directly prove nor facilitate the offense-will then become other-acts evidence under CRE 404(b). Id. at ¶ 52. And whether intrinsic or extrinsic, evidence will be governed by CRE 401-403 (not CRE 404(b)) as long as it does not implicate the defendant's character. Id. at ¶¶ 43, 52. That seems simple enough.
¶70 But, in my view, rebranding res gestae in this way solves nothing. This is because the majority's holding seemingly ignores the reality that crimes are not committed in neat packages. Every offense comes with context; therefore, practically speaking, "prosecutors cannot . . . avoid showing certain acts that are not themselves perfectly congruent with the categories defining the charged crime or crimes." 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:33 (4th ed. 2021).
¶71 My point is simply that by substituting "intrinsic evidence" for res gestae evidence, the majority does not vanquish the debate as to what is part of the crime-it merely tweaks the wording of the test under which that evidence is admissible. Under the majority's new regime, the fight will now be over which acts "directly prove" or "facilitate" the charged offense (and are therefore admissible under the framework of CRE 401-403) as opposed to which acts do not fit that description (and are therefore protected by CRE 404(b)).
¶72
Indeed, in jurisdictions where appellate courts have
disavowed res gestae in favor of intrinsic evidence, the
struggle to define what does and does not constitute Rule
404(b) evidence is still being battled out in the trial
courts. Consider, for example, one of the cases that the
majority apparently models its new rule upon, United
States v. Green,
¶73
Yet, foreseeably, the Green court merely shifted the
conversation. After the decision was handed down, trial
courts in the Third Circuit were left to consider
what, exactly, is admissible under the new,
"narrow[er]" intrinsic evidence standard. Id. at 248. And roughly twelve years later, it seems
as if the new label gives rise to the same varied results as
the old one. See United States v. Williams, 974 F.3d
320, 357 (3d Cir. 2020) ("[T]he nature and scope of the
evidence able to be deemed intrinsic will vary with the
charged offense. In particular, where a criminal conspiracy
is charged, courts have afforded the prosecution considerable
leeway to present evidence, even of unalleged acts within the
indictment period . . . .") (collecting cases); see
also United States v. Schneider,
¶74 Moreover, I believe the majority's ruling today will have unintended consequences. At oral argument, defense counsel raised an interesting argument. She posited that the doctrine of res gestae prompts hurried, whispered conversations at the bench, where trial court judges must make split-second decisions about what is and is not res gestae evidence. From my experience, I know that her assertion is accurate. But the problem that defense counsel diagnoses is not due to res gestae's imperfection. Rather, it is a direct result of how inherently difficult it is to determine when the charged offense ends and "other" offenses, acts, or misdeeds begin. That grey area will not suddenly become black and white after res gestae is replaced. For this reason, I am certain that, despite the majority's holding today, those whispered conversations and split-second evidentiary rulings at the bench will continue. The only difference is that, going forward, these conversations will be about why there was not adequate pretrial notice under CRE 404(b) for a vast array of evidence. In short, the majority's solution just shifts the type of debate that will necessarily occur. The fact is that these difficult decisions will always exist, regardless of what they are called.
¶75 Undoubtedly, it is Colorado's already overworked trial courts that will bear the brunt of the majority's holding. Because of the dangers of the propensity inference, CRE 404(b) requires the proponent of other-acts evidence to give opposing counsel advance notice of intent to introduce the evidence at trial and the trial court to both (1) rule on the evidence's admissibility prior to trial and (2) provide an accompanying limiting instruction if it rules the evidence admissible.
¶76 The majority's decision to discard res gestae facilitates a shift. Now, I envision that, mid-trial, attorneys will argue that evidence of every granular detail (even if relevant and integral to the case-such as the example of the alleged robber who uses check-cashing as a ruse to scout out a bank in advance of the actual robbery, see Maj. op. ¶ 51) depicts an "other act" and therefore should have been safeguarded under CRE 404(b). I fear that the question of what is or isn't part of a charged offense under CRE 404(b) will be excessively litigated, clogging the courts with a glut of unnecessary pretrial hearings. In my view, it is not only unnecessary but also unreasonable to increase the workload of the trial courts in the name of a solution that, in reality, does not resolve the question of what is part of a crime and what is not. Again, that question will remain, regardless of what we call it.
¶77
Finally, under the principle of stare decisis, I believe the
doctrine of res gestae should be kept intact. Stare decisis
is a fundamental principle of the rule of law; it is the
"preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to
the actual and perceived integrity of the judicial
process." Love v. Klosky,
¶78
Throughout this court's history, "we have explained
that stare decisis 'should be adhered to in the absence
of sound reason for rejecting it.'" People v.
Blehm,
¶79
Here, in my view, "no reason is advanced which calls for
deviating from stare decisis," see Creacy v. Indus.
Comm'n,
¶80 The majority justifies discarding this foundational doctrine by pointing to its inconsistent application and misuse in Colorado's courts, see Maj. op. ¶ 41, which I agree has occurred. But courts have misapplied CRE 404(b) tests as well. The truth is that these are tough calls. The endless fight over whether evidence is or is not admissible under CRE 404(b) will undoubtedly continue, no matter how the test is worded. Thus, I see no utility in the majority's ruling. Because the test for abandoning well-established precedent, as articulated in Love, is not satisfied, in my view, the majority violates the mandate of stare decisis with its ruling today.
¶81 In sum, while I agree with the majority that the misapplication of res gestae should be addressed, I believe that replacing the doctrine creates new problems while failing to address existing ones. I strongly disagree with the majority's decision because it will unreasonably burden the trial courts, disturb over a century of precedent, and destabilize Colorado's evidence jurisprudence-all for the purpose of mere rebranding.
¶82 Therefore, instead of casting off the doctrine, I would simply clarify it. I would hold, as we have held for nearly a century, that evidence integral to the charged offense is relevant evidence admissible under the framework of CRE 401-403 by way of res gestae. Additionally, I would (1) caution that evidence admitted as res gestae must be essential to complete the story of the charged offense; (2) point out that res gestae evidence is still subject to the limitations of CRE 403; (3) encourage trial courts to provide a limiting instruction alongside res gestae evidence, where appropriate; and (4) emphasize that the doctrine cannot be used as a work-around to CRE 404(b). With this guidance, I believe we could not only preserve but also improve the framework that helps trial courts identify other-acts evidence under CRE 404(b).
¶83 Because I agree with the majority that reversal is required but believe that abandoning the doctrine of res gestae is not, I respectfully concur in the judgment only. ---------
Notes:
[1] Whether res gestae should survive in civil actions, where it crops up far less frequently, is not before us. Therefore, we pass no judgment on that issue in this opinion.
[2] The legislature amended the theft statute, effective June 5, 2013. Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196. Because the amendment became effective during the alleged offense here, the prosecution charged Rojas with two counts of theft rather than one-one count for the period governed by the old statute and one count for the period governed by the amended statute.
[3] We granted certiorari to review the following issues:
1. Whether evidence that petitioner committed a similar offense, after the charged offense, is admissible without a limiting instruction, under the res gestae doctrine, to prove that she committed the charged offense.
2. Whether this court should abolish the res gestae doctrine.
[4] Stull required that (1) the
prosecutor inform the court of the purpose for which the
evidence was offered; (2) if the court admitted the evidence,
"it should then and there instruct the jury as
to the limited purpose for which the evidence is being
received and for which the jury may consider it"; (3)
the written jury instructions should repeat the limited
purpose for which the evidence was admitted; and (4) any
reference to the evidence should be in such terms as
"transactions" or "acts" or
"conduct" rather than "offenses" or
"crimes" or the like.
[5] This court amended CRE 404(b) on March 29, 2021, effective July 1, 2021, to, among other things, create subsection (3). The substance of the Rule remains largely unchanged.
[6] To the extent that we suggested in
Greenlee that Rule 404(b) is implicated only by
other criminal acts, we disavow that suggestion. See Kaufman v. People,
[7] The federal analogue to res gestae,
the "inextricably intertwined" doctrine, has come
under fire for many of the same reasons motivating our
decision today. See, e.g., Edward Imwinkelried,
The Second Coming of Res Gestae: A Procedural Approach to
Untangling the 'Inextricably Intertwined' Theory for
Admitting Evidence of an Accused's Uncharged
Misconduct, 59 Cath. U. L. Rev. 719, 729-30 (2010) ("'Inextricably intertwined' is the 'modern
de-Latinized' equivalent of res gestae, and it
has been savaged by a similar critique. . . . The vacuous
nature of the test's wording gives courts license to
employ sloppy analysis and allows them quickly to slip from a
conclusory analysis to a desired conclusion." (citations
omitted)); Milton Hirsch, "This New-Born Babe an
Infant Hercules": The Doctrine of "Inextricably
Intertwined" Evidence in Florida's Drug Wars,
25 Nova L. Rev. 279, 280-81, 294-95, (2000) (noting that res
gestae often operates as a "shibboleth" or
"talisman," which seemingly, upon incantation,
allows courts to engage in results-oriented decision-making); Jason Brauser, Intrinsic or Extrinsic?: The Confusing
Distinction Between Inextricably Intertwined Evidence and
Other Crimes Evidence Under Rule 404(b), 88 Nw. U. L.
Rev. 1582, 1618 (1994) ("By abolishing the inextricably
intertwined exception, the courts will be forced to analyze
whether uncharged misconduct evidence is offered for a
legitimate purpose or whether it is offered only to show a
defendant's character."). Some courts have been
similarly unsparing. See, e.g., United States v.
Cureton,
[8] Of course, like all evidentiary
decisions, a trial court's ruling regarding whether
evidence triggers Rule 404(b) is subject to review under the
deferential abuse of discretion standard. See People v.
Jones,
[1] Instead of simply remanding for a new trial, as the majority does, see Maj. op. ¶ 4, I would reverse and remand with specific instructions for the trial court to determine if this evidence is admissible under CRE 404(b) prior to the new trial. This way, there would be no unnecessary confusion.
[2] Courts are not required to provide
limiting instructions under CRE 105 when they admit evidence
as res gestae. See Quintana,
[3] I say that the majority's opinion "rebrands" the doctrine because, despite its broad proclamation that the mere notion of res gestae obfuscates CRE 404(b) analyses, see Maj. op. ¶ 36, it has chosen to retain res gestae's core concept, see id. at ¶ 44 (maintaining the "intrinsic-extrinsic distinction"). As such, it seems that the majority has "abolished]" res gestae in name only. See id. at ¶ 41.
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