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CRIMINAL JUSTICE | WINTER 2023
trial tactics
$55,000 a year (to support a family of seven) and
had received $5,632 in benefits to which she was
not legally entitled.
The prosecution charged Rojas with two counts
of theft (a) for the benefits she received between
February 1, 2013, and June 4, 2013, and (b) for the
benefits she received between June 5, 2013, and
July 31, 2013.
Rojas defended the case by claiming she misun-
derstood the relevant forms and lacked the intent
to deceive the government when she submitted
the January application form (at a time when she
had received no pay). The prosecution contended
that Rojas’s misstatements on the January recertifi-
cation form amounted to a knowing attempt to re-
ceive benefits to which she wasn’t legally entitled.
Thus, the case turned completely on the question
whether Rojas knowingly attempted to deceive the
Department.
It appears that the government made a deliber-
ate decision not to charge theft in relation to the
August application, which was made at a time
after she had been receiving pay, because the
Department’s investigation resulted in discontinu-
ance of benefits. Instead of charging the August
application as attempted theft, the prosecution
indicated its intent to use the August application
as evidence to prove that the January application
was knowingly made with intent to deceive the
Department. Rojas objected before and at trial
to the use of this evidence because the August
application was made after the time period of the
charged offenses and didn’t lead to the receipt of
any benefits. The prosecution relied on the res
gestae doctrine and argued that the evidence was
relevant to show how the investigation began and
to prove specific intent. The trial judge admitted
the August application as circumstantial evidence
of Rojas’s mental state but did not give the limiting
instruction that defense counsel requested.
The prosecution questioned Rojas about the Au-
gust application, highlighted that she knew she was
employed at the time she indicated on the form
that she was not, and discussed the application in
its opening and closing arguments as evidence of
Rojas’s intent.
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
STEPHEN A. SALTZBURG is the Wallace and
Beverley Woodbury University Professor at The
George Washington University Law School and is
a former chair of the Criminal Justice Section.
What Is Res Gestae?
Black’s Law Dictionary (11th ed. 2019) defines res
gestae, which means “things done,” to include
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.
The question that arises is the use of the term
“res gestae” necessary in jurisdictions that have
adopted evidence codes or rules that specifically
address the treatment of uncharged misconduct.
An Answer
One answer to the question is provided by Rojas
v. People, 504 P.3d 300 (Colo. 2022). Brooke
Rojas initially applied for food stamp benefits from
the Larimer County Department of Human Ser-
vices (the Department) in August 2012 when she
had no income. She responded to her receipt of
a December recertification letter by submitting in
mid-January 2013 her representation that she still
had no income (the January application). This was
technically true since, although Rojas had started
a new job on January 1st, she had not received any
pay at the time she submitted the recertification
let ter.
Rojas continued receiving food stamp benefits
every month until July 2013, when she inadvertent-
ly allowed them to lapse. She reapplied in August
2013 (the August application) and, despite the fact
that she was still working and receiving pay, Rojas
reported that she had no income. In connection
with the August application, the Department inves-
tigated and discovered that she was making about
BY STEPHEN A. SALTZBURG
Bye-Bye, Res Gestae
Published in Criminal Justice, Volume 37, Number 4, Winter 2023. © 2023 by the American
Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored
in an electronic database or retrieval system without the express written consent of the American Bar Association.
