People v. Rojas, Court of Appeals No. 15CA0126

Docket NºCourt of Appeals No. 15CA0126
Citation2020 COA 61
Case DateApril 09, 2020
CourtCourt of Appeals of Colorado

2020 COA 61

The People of the State of Colorado, Plaintiff-Appellee,
v.
Brooke E. Rojas, Defendant-Appellant.

Court of Appeals No. 15CA0126

COLORADO COURT OF APPEALS

April 9, 2020


The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY

CrimesTheftColorado Public Assistance ActFood StampsFraudulent Acts; EvidenceRes Gestae

A division of the court of appeals considers whether a trial court may admit evidence of a subsequent misrepresentation of income as res gestae evidence of theft by deception of food stamps.

Relying on People v. Davalos, 30 P.3d 841 (Colo. App. 2001), the majority concludes that the defendant's subsequent misrepresentation is admissible as res gestae evidence of the defendant's mental state and intent to knowingly provide false information on food stamp applications.

The dissent concludes that the trial court reversibly erred in admitting this evidence as res gestae, and it directs attention to the shortcomings of the common law res gestae doctrine. C.A.R.

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35(e)(3). The dissent explains that res gestae (1) is vague and unhelpful; (2) adds nothing to the rules of evidence; and (3) threatens to erode CRE 404(b). See Zapata v. People, 2018 CO 82, ¶ 70 (Hart, J., specially concurring) ("I have serious reservations about the continued appropriateness of the res gestae doctrine and believe that, in an appropriate case, this court should consider whether to join other jurisdictions that have abandoned the doctrine.").

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Larimer County District Court No. 13CR1903
Honorable Daniel J. Kaup, Judge

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE RICHMAN
Graham, J.*, concurs
Furman, J., dissents

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019.

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¶ 1 This case has returned to this court on remand from our supreme court.

¶ 2 In this case, a jury found defendant, Brooke E. Rojas, guilty of two counts of theft under the theft statute after she misrepresented her work income on a January 14, 2013, application for food stamps and then received food stamp benefits for six months. A division of this court reversed the judgment of conviction. The majority concluded that Rojas "could only be prosecuted under [section 26-2-305(1)(a), C.R.S. 2019, which criminalizes] the theft of food stamps by a fraudulent act," not under the general theft statute. People v. Rojas, 2018 COA 20, ¶ 1 (Rojas I). Judge Richman dissented from that determination and concluded that Rojas was properly convicted under the theft statute. Id. at ¶ 66.

¶ 3 On review, the supreme court concluded that the "legislature didn't create a separate crime" of theft of food stamps by a fraudulent act "by enacting section 26-2-305(1)(a)." People v. Rojas, 2019 CO 86M, ¶ 3. Thus, it reversed the division's opinion and remanded the case to our court "to consider any unresolved issues raised by Rojas on direct appeal." Id. at ¶ 28.

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¶ 4 There are three issues that we must resolve in this opinion. Rojas contends that the trial court (1) abused its discretion by admitting, as res gestae, evidence that she misrepresented her work income on an August 9, 2013, application for food stamps, and therefore she is entitled to a new trial; (2) erred by allowing the prosecution to aggregate her thefts into two different aggregate counts under the theft statute; and (3) erred by not retroactively applying a 2013 amendment to the theft statute to her case.

¶ 5 The dissent addressed these additional arguments for reversal in the prior case. See Rojas I, ¶¶ 56-65 (Richman, J., dissenting).

¶ 6 A majority of this division now agrees with the result and analysis set forth in the dissent for the reasons explained below. Accordingly, the defendant's conviction is affirmed, and the case is remanded for resentencing and correction of the mittimus to reflect two class 6 felony convictions.

I. Background

¶ 7 The jury heard the following evidence at trial:

• Rojas had originally applied to receive food stamps through the Larimer County Department of Human Services

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(Department) in August 2012 after she was laid off from her job.

• In late December 2012, Rojas was hired as a restaurant manager, but she did not start working until January 1, 2013.

• Also in late December 2012, she received a reapplication form from the Department, and she filled out the form when she received it.

• Because she had not yet received any income from her new job as a restaurant manager, she reported on the form that she had no work income and no employer.

• She began working approximately sixty hours per week as a restaurant manager on January 1, 2013.

• On January 13, 2013, Rojas noticed that she had not mailed the application form back to the Department. She then signed and dated the application form and mailed it.

• Rojas received $1000 per month in food stamps from February 1, 2013, to July 31, 2013.

• During this same period, Rojas received over $29,000 in work income, and the Larimer County Department of Human Services sent monthly notices reminding Rojas that she was

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required to report if her household's gross monthly income exceeded $3785.

¶ 8 Rojas acknowledged that if her monthly work income exceeded $3785, she would not be eligible for food stamps. But she believed this meant her net monthly work income, not her gross monthly work income. She recognized that her gross monthly income exceeded $3785 each month from February 1, 2013 to July 31, 2013. She never reported this to the Department.

¶ 9 In an August 9, 2013, application for food stamps, Rojas again represented that she had no work income. A Department employee questioned Rojas about the application. Rojas confirmed that the only household income came from student loans and financial aid, but she falsely stated she had no earned income.

¶ 10 Rojas was charged with one count of theft under the theft statute, section 18-4-401, C.R.S. 2012, applicable until June 2013, alleging that she had received food stamps between February 1, 2013, and June 1, 2013; and a second count of theft under section 18-4-401, C.R.S. 2013, alleging that she had received food stamps on July 1, 2013.

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¶ 11 At trial, Rojas asked the court to add a lesser nonincluded offense instruction under section 26-2-305(2), which makes it a crime for a participant in the food stamp program not to report a change in that participant's financial circumstances that affects that participant's eligibility for food stamps. The prosecution agreed, and the court granted Rojas's request.

¶ 12 A jury found Rojas guilty of two counts of theft, and one count of violating section 26-2-305(2).

II. Res Gestae
A. Facts

¶ 13 As noted, Rojas misrepresented her work income on an August 9, 2013, application for food stamps, as she had done in January 2013. The prosecution did not specifically charge Rojas for the August misrepresentation. But the trial court admitted the August 9, 2013, application, over defendant's pretrial objection, as res gestae of the charged offenses.

¶ 14 During closing arguments, the prosecution relied on the evidence that Rojas had again misrepresented her work income on the August 9, 2013, application as proof that Rojas intentionally misrepresented her work income on the January 14, 2013,

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application. Rojas contends the trial court abused its discretion in allowing this evidence as res gestae.

B. Standard of Review

¶ 15 We review a district court's evidentiary rulings for an abuse of discretion. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009). A district court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. Id.

¶ 16 If an argument is preserved by objection, we will reverse only if any error was not harmless. Hagos v. People, 2012 CO 63, ¶ 12. That is, we reverse if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

C. Applicable Law

¶ 17 Our supreme court has defined res gestae evidence as "matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without knowledge of which the main fact might not be properly understood." People v. Rollins, 892 P.2d

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866, 872-73 (Colo. 1995) (quoting Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991)).

¶ 18 When evidence is part of a continuous transaction that explains the setting in which the crime occurred, it is admissible as part of the res gestae. Such evidence has as its purpose to "provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred." People v. Davalos, 30 P.3d 841, 843 (Colo. App. 2001) (quoting People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994)). This evidence is "not subject to the general rule that excludes evidence of prior criminality." Id. (quoting Quintana, 882 P.2d at 1373). And it is "[e]vidence of criminal conduct that occurs contemporaneously with or is part and parcel of the crime charged." Callis v. People, 692 P.2d 1045, 1051 n.9 (Colo. 1984).

D. Analysis

¶ 19 At trial, Rojas contended that she...

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9 practice notes
  • Rojas v. People, Supreme Court Case No. 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • February 22, 2022
    ...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 ide......
  • Rojas v. People, 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • February 21, 2022
    ...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 id......
  • People v. Sauser, Court of Appeals No. 17CA1233
    • United States
    • Colorado Court of Appeals of Colorado
    • December 31, 2020
    ...was inadmissible under CRE 404(b) on "an erroneous view of the law or a clearly erroneous assessment of the evidence." People v. Rojas , 2020 COA 61, ¶ 15, 490 P.3d 744, 747 (cert. granted Oct. 6, 2020).¶ 54 In light of our holding that the trial court did not abuse its discretion by ruling......
  • People v. Forgette, Court of Appeals No. 16CA0441
    • United States
    • Colorado Court of Appeals of Colorado
    • February 25, 2021
    ...Zapata v. People , 2018 CO 82, ¶ 70, 428 P.3d 517 (Hart, J., specially concurring) (joined by Gabriel, J.); cf. also People v. Rojas , 2020 COA 61, ¶¶ 54-75, 490 P.3d 744 (urging the abandonment of the res gestae doctrine) (Furman, J., dissenting) (cert. granted Oct. 6, 2020). Indeed, the c......
  • Request a trial to view additional results
9 cases
  • Rojas v. People, Supreme Court Case No. 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • February 22, 2022
    ...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 ide......
  • Rojas v. People, 20SC399
    • United States
    • Colorado Supreme Court of Colorado
    • February 21, 2022
    ...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 id......
  • People v. Sauser, Court of Appeals No. 17CA1233
    • United States
    • Colorado Court of Appeals of Colorado
    • December 31, 2020
    ...was inadmissible under CRE 404(b) on "an erroneous view of the law or a clearly erroneous assessment of the evidence." People v. Rojas , 2020 COA 61, ¶ 15, 490 P.3d 744, 747 (cert. granted Oct. 6, 2020).¶ 54 In light of our holding that the trial court did not abuse its discretion by ruling......
  • People v. Forgette, Court of Appeals No. 16CA0441
    • United States
    • Colorado Court of Appeals of Colorado
    • February 25, 2021
    ...Zapata v. People , 2018 CO 82, ¶ 70, 428 P.3d 517 (Hart, J., specially concurring) (joined by Gabriel, J.); cf. also People v. Rojas , 2020 COA 61, ¶¶ 54-75, 490 P.3d 744 (urging the abandonment of the res gestae doctrine) (Furman, J., dissenting) (cert. granted Oct. 6, 2020). Indeed, the c......
  • Request a trial to view additional results

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