Applying this holding to the case before it, the supreme court concludes that 

the challenged evidence is an extrinsic act that implicates the defendant’s 

character, and its admissibility is therefore governed by CRE 404(b) and Spoto. But 

because the trial court admitted the evidence under the doctrine of res gestae, it 

didn’t conduct a CRE 404(b) analysis and didn’t provide the requisite procedural 

safeguards. This constituted error. And because the error was not harmless, the 

judgment of the court of appeals, which affirmed the defendant’s convictions, is 

reversed, and the case is remanded to the trial court for a new trial.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2022 CO 8

Supreme Court Case No. 20SC399

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 15CA126

Petitioner:

Brooke E. Rojas,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed

en banc

February 21, 2022

Attorneys for Petitioner:

Megan A. Ring, Public Defender

Rachel K. Mercer, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Paul Koehler, Assistant Attorney General

Denver, Colorado

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.
2

JUSTICE HOOD delivered the Opinion of the Court. 

¶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.
3

¶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 alwaysnebulous 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 

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.
4

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 
5

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 

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.
6

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. 
7

¶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. 

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.
8

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 1870s, see Doane v. Glenn, 

1 Colo. 495, 499–501 (1872), rev’d on other grounds by Doane v. Glenn, 88 U.S. 33 
9

(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
10

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 thenexisting 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 
11

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
12

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 

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.
13

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 
14

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 

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.
15

(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 
16

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. 
17

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. 
18

¶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

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,
19

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.”). 

58 P.3d 979, 996–1004 (Colo. 2002) (analyzing the admissibility of the defendant’s 

drawings and writings under 404(b) and Spoto).
20

¶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 
21

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 wellestablished 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 
22

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 

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 decisionmaking); 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)). 
23

¶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 
24

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 
25

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 
26

‘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 
27

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 
28

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 

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.
29

G. Application to Rojas’s Alleged Theft

¶53 Because Rojas preserved her objection to the court’s allegedly nonconstitutional 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
30

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 
31

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.
1

CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, concurring 

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.
2

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 
3

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). 
4

¶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. 
5

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. 
6

¶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 

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.
7

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 

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.
8

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 

at ¶ 44 (maintaining the “intrinsic-extrinsic distinction”). As such, it seems that 

the majority has “abolish[ed]” res gestae in name only. See id. at ¶ 41.
9

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 
10

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 
11

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 
12

(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 
13

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 1870s. 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 
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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 
15

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.