Brooke E. Rojas v. The People of the State of Colorado

2022 CO 8

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 , 530 P.2d 493, 496

( Colo. 1975 ) . So, res gestae evidence-septic though it

sometimes may be-has been admitted because it is "linked

in time and circumstances to the charged crime" or

"is necessary to complete the story of the crime for the

jury." Zapata v. People , 2018 CO 82 , ¶ 58 ,

428 P.3d 517, 530 ( quoting People v. Skufca , 176

P.3d 83, 86 ( Colo. 2008 ) ) ; People v. Quintana , 882

P.2d 1366, 1373 ( Colo. 1994 ) . In short, we have treated res

gestae evidence, in various ways, as intrinsic to the charged

offenses and therefore not subject to the rules limiting the

admissibility of extrinsic, uncharged misconduct evidence.

But because res gestae is so ill-defined, such uncharged

misconduct evidence too often dodges the rules and slips into

cases without the requisite scrutiny.

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

I.

Facts and Procedural History

¶5

This is the second time we have reviewed this case . See

People v. Rojas , 2019 CO 86M , 450 P.3d 719

( " Rojas I " ) . Brooke Rojas was convicted of

two counts of theft based on her improper receipt of food

stamp benefits.

¶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 , 2018 COA 20 , ¶ 40 , 490 P.3d

391 , 398 . We granted certiorari to review whether the

legislature had "created an independent criminal offense

for food stamp theft that abrogated the State 's authority

to prosecute under the general theft statute ." Rojas

I , ¶ 9 n.1, 450 P.3d at 721 n.1 . Concluding it had

not, we reversed the court of appeals ' judgment and

remanded for the division to consider any remaining issues on

appeal. Id. at ¶ 28 , 450 P.3d at 724 .

¶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 , 2020 COA 61 , ¶

32 , 490 P.3d 744, 749 ( " Rojas II " ) . Rojas

again petitioned this court for certiorari review, which we

granted. [3]

II.

Analysis

¶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.

A.

Standard of Review

¶16

We review a trial court 's evidentiary rulings for an

abuse of discretion. Venalonzo v. People , 2017 CO 9 ,

¶ 15 , 388 P.3d 868 , 873 . A trial court abuses its

discretion when its ruling is based on an erroneous view of

the law. People v. Wadle , 97 P.3d 932, 936 ( Colo.

2004 ) .

¶17

In reviewing a trial court 's ruling , appellate courts

ordinarily adhere to precedent under the doctrine of stare

decisis. See Love v. Klosky , 2018 CO 20 , ¶ 14 ,

413 P.3d 1267 , 1270 . However, the doctrine is not so

inflexible that we can't reevaluate our precedent where

" we are 'clearly convinced that the rule was

originally erroneous or is no longer sound because of

changing conditions and that more good than harm will come

from departing from precedent.' " McShane v.

Stirling Ranch Prop. Owners Ass'n, Inc. , 2017 CO 38 ,

¶ 26 , 393 P.3d 978, 984 ( quoting People v.

Blehm , 983 P.2d 779, 788 ( Colo. 1999 ) ) ; People v.

LaRosa , 2013 CO 2 , ¶¶ 30-31 , 293 P.3d 567,

574-75 ( departing from stare decisis after concluding there

were sound reasons for doing so ) .

B.

The Evolution of the Res Gestae Doctrine in Colorado

¶18

Res gestae has deep roots in American common law. The Supreme

Court first referenced the doctrine in 1817 , Leeds v.

Marine Ins. Co. , 15 U.S. 380, 383 ( 1817 ) , and Colorado

courts have recognized it since at least the 1870 s, see

Doane v. Glenn , 1 Colo. 495, 499-501 ( 1872 ) ,

rev'd on other grounds by Doane v. Glenn , 88

U.S. 33

( 1874 ) . The Latin phrase, which means "things

done," Res Gestae , Black's Law Dictionary

( 11th ed. 2019 ) , encompassed evidence that was necessary to

understand the charged crime:

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 , 116 P. 1051 ,

1052-53 ( Colo. 1911 ) ; see also Graves v. People , 32

P. 63 , 65 ( Colo. 1893 ) ( "Res gestae are events speaking

for themselves, through the instinctive words and acts of

participants, not the words and acts of participants when

narrating the events. What is done or said by participants

under the immediate spur of a transaction becomes thus part

of the transaction, because it is then the transaction that

thus speaks." (quoting Francis Wharton , A Treatise

on the Law of Evidence in Criminal Issues § 262

(9th ed. 1884) ) ) .

¶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 , 307 P.2d 1083, 1097 ( Colo. 1957 ) ( "Under

the well-established doctrine of res

gestae, unsworn statements are admitted on the theory that

they are spontaneous utterances, dominated and evoked by the

transaction itself, and are not the result of premeditation,

reflection or design." ) ; see also Zapata ,

¶ 71 , 428 P.3d at 532 (Hart, J., specially concurring) ;

H. Patrick Furman & Ann England, The Expanding Use of

the Res Gestae Doctrine , 38 Colo. Law. 35 , 35 ( 2009 ) .

¶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 , 661 P.2d 675, 679 ( Colo. 1983 ) ( equating the

requirements for admitting excited utterances under CRE 803

to the pre-adoption requirements for admitting res gestae

statements ) , abrogated on other grounds by People v.

Fry , 92 P.3d 970 ( Colo. 2004 ) ; see also McCormick on

Evidence , supra , § 268 .

¶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 , 146 F.2d 197, 198 ( 2d Cir. 1944 ) .

¶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 , 344 P.2d 455, 458 ( Colo. 1959 ) ,

superseded by rule as stated in People v. Williams ,

2020 CO 78 , ¶¶ 7-15 , 475 P.3d 593 , 595-98 , its

admissibility was "strictly limited" under the

common law, Williams , ¶ 7 , 475 P.3d at 596 .

¶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 , 344 P.2d at 458 -59 . The

prosecution , as the proponent of such evidence, had to

establish by "clear and convincing evidence" that

the other act had occurred and that the defendant was the

person who had engaged in the misconduct. See

People v. Botham , 629 P.2d 589, 602 ( Colo. 1981 ) ,

superseded by rule as stated in Garner , 806 P.2d at

370 . And we insisted that the court address three threshold

issues:

(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 , 596 P.2d 751, 754 ( Colo. 1979 ) ,

superseded by rule as stated in People v. Rath , 44

P.3d 1033, 1039 ( Colo. 2002 ) .

¶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 , 615 P.2d 720, 723 ( Colo.

1980 ) ( applying pre-Rules common law and noting that although

" we have alluded to the importance of the temporal

proximity of the statement to the event in a number of cases ,

we also have noted that contemporaneity of the act and the

assertion is not required" ( citations omitted ) ) .

C.

The Modern Rules of Evidence

¶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 , 795 P.2d 1314, 1318-19 ( Colo.

1990 ) , this court "articulated a framework for

determining the relevancy of this kind of [character]

evidence within the scheme of the Rules, analyzing the

requirements of CRE 401-404 in terms of four specific

components, or evidentiary considerations."

Williams , ¶ 8 , 475 P.3d at 596 . Such evidence

must be (1) logically relevant (2) to a material fact (3)

independent of the prohibited inference of the

defendant 's bad character, and

(4) the probative value of the evidence must not be

substantially outweighed by the risk of unfair prejudice.

Id. at ¶ 9 , 475 P.3d at 596 . If a court

determines the evidence is admissible, the court must also,

upon request, contemporaneously instruct the jurors of the

limited purpose for which the evidence may be considered. CRE

105 ; see People v. Bondsteel , 2015 COA 165 , ¶

85 , 442 P.3d 880 , 897 , aff'd , 2019 CO 26 , 439

P.3d 847 .

¶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 , 475 P.3d at 596- 97 ;

see also Rath , 44 P.3d at 1038 -39 .

D.

Examples of Inconsistency

¶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 , 786 P.2d 1100, 1103 ( Colo.

1990 ) , the prosecution charged the defendant with harassment

and criminal extortion based on threatening phone calls he

allegedly made to the victim during a four-month period. The

trial court , " [r] elying on CRE 404 (b) ," admitted

hundreds of calls the defendant had allegedly made before and

after the charged period "because [the evidence] proved

identity and was part of the res gestae of the

criminal episode." Id. at 1109 ( emphasis

added ) . This court concluded that the trial court had not

abused its discretion by invoking both res gestae and Rule

404 (b) to admit the evidence.

Id. But by definition, 404 (b) evidence is extrinsic

to the charged crime while, traditionally, res gestae

evidence is intrinsic to it. See Quintana , 882 P.2d

at 1372 . So our decision unnecessarily blurred the analytical

lines by approving of the trial court 's reliance on

mutually exclusive theories for admitting the evidence.

¶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 , 200 P.3d 363, 365-69 ( Colo.

2009 ) , we concluded that the defendant 's statement that

he wanted to kill a woman and hide her body in a remote area,

made two months before the murder at issue, was admissible

under general relevancy rules ( CRE 401-403 ) and not

excludable under 404 (b) . Therefore, "there [was] no need

to consider an alternative theory of relevance, such as

res gestae , where the evidence [was] admissible

under general rules of relevancy." Greenlee ,

200 P.3d at 368 . Although we grounded the decision in the

Rules of Evidence rather than pre-Rules common law, we

nonetheless added to the confusion by concluding that,

because the statements were relevant independent of the

impermissible inference about the defendant 's character,

404 (b) did not apply. [6] Id. But this criterion is simply

part of the 404 (b) analysis

under Spoto , not a basis for avoiding Rule 404 (b) .

If the proffered evidence is extrinsic to the charged crime,

which the Greenlee court impliedly concluded these

statements were, 200 P.3d at 366 -67 , and if it implicates the

defendant 's character, its admissibility is governed by

Rule 404 (b) . We discuss this at greater length below.

E.

Farewell Res Gestae

¶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 , 490 P.3d at 752 (Furman, J.,

dissenting) ( alteration in original ) ( quoting 1 Kenneth S.

Broun et al., McCormick on Evidence § 190.9

( Robert P. Mosteller ed., 8th ed. 2020 ) ) . And he has not been

alone in his criticism. See, e.g. , Zapata ,

¶ 76 , 428 P.3d at 533 (Hart, J., specially concurring)

( noting that res gestae "is a vague and nearly

standardless concept that is applied too expansively" ) ;

People v. Agado , 964 P.2d 565, 569 ( Colo.App. 1998 )

(Briggs, J., specially concurring) ( " [T] he doctrine has

confounded counsel and courts , often tending to create as

much confusion as clarification." ) .

¶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 , 200 P.3d at 368 -is more

often treated as a theory for near-universal admissibility.

The doctrine invites truncated analysis. As noted by Justice

Hart in her special concurrence in Zapata , res

gestae all too often "short-circuit [s] the evaluation

called for in Rule 404 (b) " analysis. ¶ 75 , 428 P.3d

at 532 -33 . The result has been that courts often skip the

first step in deciding whether a defendant 's acts are

admissible: determining if the evidence is intrinsic or

extrinsic to the charged offense. And by skipping this step,

courts often admit what should be extrinsic, 404 (b) evidence

without conducting a Spoto analysis or adhering to

procedural safeguards, or they consider the admissibility of

intrinsic evidence under 404 (b) and Spoto ,

effectively diluting the general relevancy rules.

¶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 , 992 P.2d 619, 624 ( Colo.App. 1999 ) ,

a case involving a murder allegation, a division of the court

of appeals approved of the trial court 's admission of

evidence of a burglary the defendant committed three days

before

the charged crime under the doctrine of res gestae to

demonstrate that he and his friends left Colorado Springs

with no means of supporting themselves. The prosecution

asserted that they "began to commit crimes in order to

provide for themselves" and, operating under such

conditions, "encountered, robbed, and killed the

victim." Id. This language is "perilously

close to simply admitting evidence of bad character."

Furman & England , supra , 38 Colo. Law. at 38 .

¶39 Moreover, the continued use of res gestae is

unnecessary. " [E] very rule of evidence to which it has

ever been applied exists as a part of some other

well-established principle and can be explained in the terms

of that principle." 6 John Henry Wigmore, Evidence

in Trials at Common Law § 1767 ( James H. Chadbourne

rev., 1976 ) .

¶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 ,

869 N.W.2d 253, 264 ( Mich. 2015 ) ( " [T] he plain language

of MRE 404 (b) . . . sets forth no such 'res gestae

exception' from its coverage. Nor do we see any basis for

reading one into the rule." ) ; State v. Fetelee ,

175 P.3d 709, 735 ( Haw. 2008 ) ( concluding that the Hawaiian

Rules of Evidence supersede res gestae ) ; United States v.

Bowie , 232 F.3d 923, 929 ( D.C. Cir. 2000 ) ( " [W] e

are confident that there is no general 'complete the

story' or 'explain the circumstances' exception

to Rule 404 (b) . . . ." ) . And several of the federal

courts have stopped relying on res

gestae, or "inextricable intertwinement," as a

theory of admission. E.g. , United States v.

Gorman , 613 F.3d 711, 719 ( 7th Cir. 2010 )

( " [R] esort to inextricable intertwinement is unavailable

when determining a theory of admissibility." ) ; see

also Daniel J. Capra & Liesa L. Richter,

Character Assassination: Amending Federal Rule of

Evidence 404 (b) to Protect Criminal Defendants , 118

Colum. L. Rev. 769 , 798-800 ( 2018 ) . [7]

¶41

We now join those jurisdictions and abolish the res gestae

doctrine in Colorado. For all of the reasons provided above,

we are clearly convinced that more good than harm will come

from departing from our precedent regarding res gestae

evidence. In doing so, we seek to do more than simply

de-Latinize the analysis. We strive to move beyond the use of

catchphrases and metaphors for deciding when Rule 404 (b) is

at issue.

F.

How to Decide When Rule 404 (b) Applies

¶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 , 519 U.S. 172, 184 ( 1997 )

(describing Rule 404 (b) as "dealing with admissibility

when a given evidentiary item has the dual nature of

legitimate evidence of an element and illegitimate

evidence of character" ( emphasis added ) ) ; see also

United States v. Kupfer , 797 F.3d 1233, 1242-43 ( 10th

Cir. 2015 ) ( explaining that evidence of a defendant 's

other acts

is only subject to Rule 404 (b) if it concerns the

defendant 's character ) . If evidence doesn't implicate

the defendant 's character, Rule 404 (b) doesn't govern

its admissibility.

¶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 , 617 F.3d 233, 248-49 ( 3d Cir. 2010 ) ;

Bowie , 232 F.3d at 928 -29 . These courts have

narrowed the definition of intrinsic evidence to two acts:

(1) those that directly prove the charged offense and (2)

those that occur contemporaneously with the charged offense

and facilitate the commission of it. Green , 617 F.3d

at 248 -49 ; Bowie , 232 F.3d at 929 ; see also

State v. Rose , 19 A.3d 985, 1009-10 ( N.J. 2011 )

(abolishing the res gestae doctrine and applying

Green ) .

¶45

Examples from jurisdictions already operating in the post-res

gestae world are instructive. In United States v.

Roberson , No. 21-102 (JDB) , 2022 WL 35643 , at *2 ( D.D.C.

Jan. 4, 2022 ) , the defendant was charged with one count of

distribution of child pornography for sending a video by

email to "Email Address 2." In a motion in limine ,

the prosecution sought to introduce all the defendant 's

email communications (over seventy emails spanning a

fourteen-month period) with Email Address 2. Id. at

*2, 4 . The court observed that " [b] ecause Rule 404 (b)

applies exclusively to evidence of other acts . . . only

' [a] cts "extrinsic" to the crime

charged are subject to Rule 404 (b) 's limitations; acts

"intrinsic" to the crime are not.' "

Id. at *3 ( quoting United States v. McGill ,

815 F.3d 846, 879 ( D.C. Cir. 2016 ) (per curiam) ) . " [A] n

act is 'intrinsic' to the charged conduct for

purposes of Rule 404 (b) only if it (a) is part of the charged

offense; (b) is offered as direct evidence of the charged

crime; or (c) was performed contemporaneously with the

charged crime and facilitated the commission of the charged

crime." Id. at *4 .

¶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 , 2018 WL 9785498 , at

*1 ( D. Ariz. May 1, 2018 ) ) .

¶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 , 159 F.3d 37 ( 1st

Cir. 1998 ) , applied a similar test. In Shea , police

were searching for the identity of two men who had attempted

to rob a bank. Id. at 38-39 . During the attempted

robbery, one man pointed a shiny, silver revolver at one of

the clerks while the other man pointed a black revolver at

the other clerk; however, because neither clerk could open

the vault, the robbers left empty-handed. Id. at 38 .

The men entered and exited the bank through the same broken

window, with one of the men cutting himself and leaving DNA

evidence at the scene that was later matched to the

defendant . Id. One week after the attempted robbery,

the defendant was arrested for another, unrelated

robbery. Id. at 38-39 . During that arrest, police

seized from the defendant a black revolver that matched the

description of one of the guns used during the earlier,

attempted robbery. Id.

¶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]

G.

Application to Rojas's Alleged Theft

¶53

Because Rojas preserved her objection to the court 's

allegedly non- constitutional error, we review any error for

ordinary harmlessness. Hagos v. People , 2012 CO 63 ,

¶ 12 , 288 P.3d 116 , 119 ; Crim. P. 52 (a) . Under this

standard, we must reverse if the error "substantially

influenced the verdict or affected the fairness of the trial

proceedings." Hagos , ¶ 12 , 288 P.3d at 119

( quoting Tevlin v. People , 715 P.2d 338, 342 ( Colo.

1986 ) ) ; see Crim. P. 52 (a) . To determine if that

occurred, we look to whether the prosecution has shown that

"there is no reasonable possibility that [the error]

contributed to the defendant 's conviction."

Pernell v. People , 2018 CO 13 , ¶ 22 , 411 P.3d

669 , 673 .

¶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 , 2020 COA 80M , ¶ 8 , 486 P.3d 377,

378 ( "A court abuses its discretion if it misinterprets

or misapplies the law." ) .

¶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 ,

2021 CO 25 , ¶ 13 , 486 P.3d 289 , 242 ( quoting People

v. Prendergast , 87 P.3d 175, 185 ( Colo.App. 2003 ) )

( alterations in original ) . Rojas's defense at trial was

that her misrepresentations on the January application

resulted from a misunderstanding of the forms; the

prosecution contended that she made a knowing

misrepresentation.

¶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.

III.

Conclusion

¶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.

I.

Res Gestae Evidence Is Just Relevant Evidence

¶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 , 882 P.2d 1366, 1374 ( Colo.

1994 ) ( " Res [ g ] estae evidence

is admissible only if it is relevant and its probative value

is not substantially outweighed by the danger of unfair

prejudice." ) .

¶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 , 892 P.2d 866, 872-73 ( Colo. 1995 ) ( quoting

Woertman v. People , 804 P.2d 188 , 190 n.3 ( Colo.

1991 ) ) .

¶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 , 2020 CO 78 , ¶¶ 7-15 , 475

P.3d 593 , 595-98 .

¶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 , 202 P.3d 542,

552-53 ( Colo. 2009 ) . And if the court does find the evidence

admissible, it must then "instruct the jury, pursuant to

CRE 105 , on the limited purpose for which such evidence is

admitted," both at the time of admission and at the

close of evidence. People v. Garner , 806 P.2d 366,

374 ( Colo. 1991 ) .

¶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 , 882 P.2d at 1373 n.12 .

CRE 404 (b) was "never intended to apply to evidence that

is admissible due to its inherent connection to the crime

charged." State v. Gunby , 144 P.3d 647, 668

( Kan. 2006 ) (McFarland, C.J., dissenting) ( referring to Kan.

Stat. Ann. § 60-455 ( 2021 ) , Kansas's version of CRE

404 ) .

¶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 , 882 P.2d at 1372 .

II.

Res Gestae Has Been Subject to Misuse

¶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 , 892 P.2d at 873 ( finding evidence that was

"neither contemporaneous with nor provided a background

for the offense charged" did not constitute res gestae

evidence ) . Submitting the August application did not help

Rojas allegedly steal food stamps from February to July of

2013 . It was not "so closely connected" with the

charged crime that it "constitute [d] a part of the

transaction." See id. at 872 ( quoting

Woertman , 804 P.2d at 190 n.3 ) . In fact, the

subsequent application was wholly extrinsic.

¶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.

III.

Abandoning Res Gestae Is Unwise

¶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.

A.

The Majority's

Decision Does

Not Solve

the Underlying Dilemma

¶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 , 617 F.3d 233 ( 3d Cir. 2010 ) .

See Maj. op. ¶ 44 . In Green , the Third

Circuit Court of Appeals denounced the federal equivalent of

res gestae in favor of roughly the same rule that the

majority announces today. 617 F.3d at 246 -49 . With this

proclamation, the court intended to nullify the "elusive

and unhelpful" doctrine in favor of cleaner rules.

Id. at 246 .

¶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 , 801 F.3d 186, 200-01

( 3d Cir. 2015 ) ( ruling that evidence that the defendant

showed the victim a sexually charged film was admissible as

intrinsic evidence in a prosecution for traveling in foreign

commerce with the intent to engage in sex with a minor ) ;

United States v. Gassew , 42 F.Supp.3d 686, 694 ( E.D.

Pa. 2014 ) ( concluding it was proper to admit evidence that

the defendant robbed patrons and employees of a bar at the

same time he robbed the bar itself because it "directly

prov [ed] " that he robbed the bar-the charged offense in

that case ) . It seems that rebranding res gestae has failed to

eliminate the fight over Rule 404 (b) classifications in the

Third Circuit, and I predict Colorado will be no different.

¶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.

B.

The Majority's

Decision Places

an Unreasonable

Burden on Trial Courts

¶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.

C.

The Majority's Decision Violates

the Mandate

of Stare Decisis

¶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 , 2018 CO 20 , ¶

14 , 413 P.3d 1267, 1270 ( quoting Payne v. Tennessee ,

501 U.S. 808, 827 ( 1991 ) ) .

¶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 , 983 P.2d 779, 788 ( Colo. 1999 ) ( quoting Smith

v. Dist. Ct. , 907 P.2d 611 , 612 ( Colo. 1995 ) ) . In other

words, we have a duty to exercise "extreme reluctance in

overruling settled law." In re Marriage of

Grubb , 745 P.2d 661, 667 ( Colo. 1987 ) (Erickson, J.,

dissenting) . Departure from precedent should only occur when

" we are clearly convinced that (1) the rule was

originally erroneous or is no longer sound because of

changing conditions and (2) more good than harm will come

from departing from precedent." Love , ¶

15 , 413 P.3d at 1270 .

¶79

Here, in my view, "no reason is advanced which calls for

deviating from stare decisis," see Creacy v. Indus.

Comm'n , 366 P.2d 384 , 386 ( Colo. 1961 ) ; thus, we

should decline to do so. As the majority acknowledges, the

doctrine of res gestae is well-settled. See Maj. op.

¶ 18 . Colorado courts have recognized the early forms of

res gestae since at least the 1870 s. See Doane v.

Glenn , 1 Colo. 495, 499-501 ( 1872 ) , rev'd on

other grounds by Doane v. Glenn , 88 U.S. 33 ( 1874 ) . Even

in its more modern form, res gestae has been a part of our

jurisprudence for over ninety years. See Abshier v.

People , 289 P. 1081, 1088 ( Colo. 1930 ) ( holding that

evidence of the defendant 's other crimes was admissible

because the offenses were "indivisibly

connected with, incidental to, and in furtherance of"

the charged crime ) . And a quick survey of Colorado case law

reveals that courts have consistently relied on the res

gestae framework in tandem with the Rules of Evidence for the

past forty-odd years. See People v. Czemerynski , 786

P.2d 1100, 1109 ( Colo. 1990 ) ; Quintana , 882 P.2d at

1373 -74 ; Rollins , 892 P.2d at 872 -73 ; People v.

Skufca , 176 P.3d 83, 86-87 ( Colo. 2008 ) ; People v.

Merklin , 80 P.3d 921, 924-25 ( Colo.App. 2003 ) ;

People v. Thomeczek , 284 P.3d 110, 114-15 ( Colo.App.

2011 ) ; People v. Cisneros , 2014 COA 49 , ¶¶

105-06 , 108, 356 P.3d 877 , 898 ; People v. Knapp ,

2020 COA 107 , ¶¶ 32-34 , 44, 487 P.3d 1243 , 1252-53 .

¶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.

IV.

Conclusion

¶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.

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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. 344 P.2d at 458 -59 .

[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 , 202 P.3d 542, 552-60 ( Colo.

2009 ) ( analyzing the admissibility of the defendant 's

non-criminal conduct, which included martials arts and weapon

training, drawings, and weapons collection, under 404 (b) and

Spoto ) ; Masters v. People , 58 P.3d 979,

996-1004 ( Colo. 2002 ) ( analyzing the admissibility of the

defendant 's drawings and writings under 404 (b) and

Spoto ) .

[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 , 739 F.3d 1032, 1037 ( 7th Cir. 2014 ) ( noting

that res gestae "is usually propensity evidence simply

disguised as inextricable intertwinement evidence, and is

therefore improper" ( quoting Gorman , 613 F.3d

at 718 ) ) .

[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 , 2013 CO 59 , ¶ 11 , 311 P.3d 274 , 276 .

[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 , 882 P.2d at 1375 .

However, when it comes to some types of res gestae

evidence-such as essential, contextual evidence that could

nonetheless implicate a defendant 's character-nothing

prohibits courts from alerting the jury to the limited,

contextual purpose for which the evidence is admitted.

See People v. Gladney , 570 P.2d 231, 233 ( Colo.

1977 ) ( noting that it is the "better practice" to

provide a limiting instruction alongside res gestae

evidence ) . Encouraging trial courts to more freely provide a

limiting instruction alongside sensitive res gestae evidence

would lessen the risk that the jury might misuse it.

[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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