Peo v. Garcia

• Court: Colorado Court of Appeals
• Decided: May 7, 2026
• Docket: 23CA1571
• Status: Unpublished

Opinion

23CA1571 Peo v Garcia 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1571 Jefferson County District Court No. 22CR2923 Honorable Christopher B. Rhamey, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gemini Elijah Garcia,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE LIPINSKY Welling and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Gemini Elijah Garcia appeals his convictions for second degree

murder (felony murder) and five counts of aggravated robbery, as

well as two crime of violence sentence enhancers attendant to the

aggravated robbery convictions. We reverse his convictions and

remand for a new trial.

I. Background

¶2 The jury could have reasonably found the following facts from

the evidence introduced at trial. Jessie Vargas-Vigil arranged to

buy marijuana from the victim in the parking lot outside

Vargas-Vigil’s apartment building. On October 12, 2022, Garcia

met Vargas-Vigil and Vargas-Vigil’s brother at Vargas-Vigil’s

apartment. Vargas-Vigil and Garcia — who was carrying an empty

bag — left the apartment, walked to the parking lot, and

approached the victim, who was seated in a truck.

¶3 Although the evidence conflicted, Garcia and the People agree

that Vargas-Vigil entered the passenger side of the truck while

Garcia stood outside the driver’s side door. A gunshot was fired.

After Vargas-Vigil, who appeared to be holding a gun, took items

from the victim, he and Garcia ran from the truck. While running,

Vargas-Vigil dropped a clear plastic bag containing a “green leafy

1 substance.” He yelled to Garcia to pick it up. Garcia did so, and

the two men ran into Vargas-Vigil’s apartment. They left the

apartment with Vargas-Vigil’s brother, who drove off with them. No

direct evidence established that Garcia was armed on the day of the

robbery. No witness testified, and no photo showed, that Garcia

possessed a gun that day.

¶4 The victim was taken to a hospital, where he was pronounced

dead. The cause of death was determined to be a gunshot to the

head. Six days later, police officers arrested Garcia during an

unrelated traffic stop. Police searched Garcia incident to the arrest

and found a gun and ammunition in his possession.

¶5 Garcia was charged with one count of second degree murder

(felony murder) (count 1) and five counts of aggravated robbery

(counts 2 through 6). At trial, he denied that he had robbed the

victim and presented a disengagement affirmative defense to the

felony murder charge.

¶6 The jury convicted him of all counts. The trial court merged

the aggravated robbery counts into the felony murder count,

characterizing the former counts as “predicate offenses to [felony

murder], and lesser included offenses.” See § 18-1-408, C.R.S.

2 2025. The trial court applied two sentence enhancers, see

§ 18-1.3-406(2)(a)(I)(A)-(B), C.R.S. 2025, and sentenced Garcia to

forty-four years in the custody of the Department of Corrections.

¶7 On appeal, Garcia contends that there was insufficient

evidence to convict him of the charged offenses; the trial court

abused its discretion by admitting propensity evidence establishing

that, because Garcia had guns before and after the robbery, he was

more likely to have been armed during the robbery; and the trial

court abused its discretion and violated Garcia’s right to present a

defense by rejecting his theory of defense instruction. He also

argues that the cumulative effect of the alleged errors deprived him

of a fair trial.

¶8 We disagree with Garcia’s first and third contentions, but we

agree that the trial court abused its discretion by admitting the

propensity evidence and reverse and remand on that ground.

Because we conclude that reversal is warranted because of the trial

court’s evidentiary error, we decline to address Garcia’s cumulative

error argument.

3 II. Analysis

A. Sufficiency of the Evidence

¶9 Garcia contends there was insufficient evidence to support his

convictions for aggravated robbery and felony murder. We must

address this argument regardless of our resolution of Garcia’s other

contentions because double jeopardy principles prohibit the retrial

of a defendant when “an appellate court reverses a conviction solely

for lack of sufficient evidence to sustain the jury’s verdict.”

McDonald v. People, 2021 CO 64, ¶ 62, 494 P.3d 1123, 1134

(quoting People v. Brassfield, 652 P.2d 588, 594 n.5 (Colo. 1982)).

¶ 10 We conclude that the evidence was sufficient to support the

convictions.

1. Standard of Review

¶ 11 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” People v. Gray, 2025 COA 23, ¶ 21, 568

P.3d 448, 452 (quoting People v. Harrison, 2020 CO 57, ¶ 31, 465

P.3d 16, 23). To sustain a conviction, we consider whether the

relevant evidence, “when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

4 a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Johnson v. People, 2023

CO 7, ¶ 13, 524 P.3d 36, 40 (quoting Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010)). “In assessing the sufficiency of the

evidence, we must consider all the evidence admitted at trial,

including . . . erroneously admitted evidence . . . .” People v. Hard,

2014 COA 132, ¶ 39, 342 P.3d 572, 579. “While we ‘give the

prosecution the benefit of all reasonable inferences that might fairly

be drawn from the evidence,’ there must be a ‘logical and

convincing connection between the facts established and the

conclusion inferred.’” People v. Martinez, 2024 COA 34, ¶ 46, 552

P.3d 551, 560 (quoting People v. Donald, 2020 CO 24, ¶ 19, 461

P.3d 4, 7).

2. Aggravated Robbery

¶ 12 Garcia contends that the evidence was insufficient to sustain

his conviction for aggravated robbery under either a principal or a

complicity theory because the prosecution failed to prove that he

was armed with a deadly weapon; knowingly took anything of value

from the victim; used threats, force, or intimidation to do so; or

aided or abetted Vargas-Vigil.

5 a. Substantive Law

¶ 13 To convict Garcia of aggravated robbery under section

18-4-302(1)(a)-(c), C.R.S. 2025, the prosecution was required to

prove all the elements of simple robbery, plus the additional

elements noted below, or that Garcia was complicit in Vargas-Vigil’s

commission of an aggravated robbery. See People v. Buell, 2017

COA 148, ¶ 21, 442 P.3d 961, 966, aff’d, 2019 CO 27, 439 P.3d

857.

¶ 14 A person commits simple robbery if the person “knowingly

takes anything of value from the person or presence of another by

the use of force, threats, or intimidation.” § 18-4-301(1), C.R.S.

2025. A person who commits robbery is guilty of aggravated

robbery if, as relevant here, “during the act of robbery or immediate

flight therefrom,” the person:

(a) “is armed with a deadly weapon with intent, if resisted, to

kill, maim, or wound the person robbed”;

(b) “by the use of force, threats, or intimidation with a deadly

weapon knowingly puts the person robbed . . . in

reasonable fear of death or bodily injury”; or

6 (c) “has present a confederate, aiding or abetting the

perpetration of the robbery, armed with a deadly weapon,

with the intent, either on the part of the defendant or

confederate, if resistance is offered, to kill, maim, or

wound the person robbed,” or by the use of force, “puts

the person robbed . . . in reasonable fear of death or

bodily injury.”

§ 18-4-302(1)(a)-(c).

¶ 15 Under a complicity theory of liability, “[a] person is legally

accountable as principal for the behavior of another constituting a

criminal offense if, with the intent to promote or facilitate the

commission of the offense, [the person] aids, abets, advises, or

encourages the other person in planning or committing the offense.”

§ 18-1-603, C.R.S. 2025.

¶ 16 The jury was instructed on a complicity theory of liability for

all five of Garcia’s aggravated robbery counts and on a principal

theory of liability for three of those counts.

7 b. The Evidence Was Sufficient to Support Garcia’s Conviction for Aggravated Robbery

¶ 17 We first address the sufficiency of the evidence supporting

Garcia’s convictions as a complicitor and then examine the evidence

supporting his convictions as a principal.

i. Complicity Liability

¶ 18 To convict Garcia under a complicity theory, the prosecution

needed to prove that Vargas-Vigil committed each specified form of

aggravated robbery and that, for each aggravated robbery charge,

Garcia, “with the intent to promote or facilitate” Vargas-Vigil’s

commission of the aggravated robbery, “aid[ed], abet[ted], advise[d],

or encourage[d]” Vargas-Vigil “in planning or committing the

offense.” Id.

¶ 19 As the supreme court has explained, complicity has a dual

mental state requirement. Thus, for each aggravated robbery

charge, the prosecution also needed to prove that Garcia had

“(1) the intent, in the commonly understood sense of desiring or

having a purpose or design, to aid, abet, advise, or encourage

[Vargas-Vigil] in his criminal act or conduct, and (2) an awareness

of those circumstances attending the act or conduct [Garcia sought]

8 to further that are necessary for” commission of the charged

aggravated robbery. People v. Childress, 2015 CO 65M, ¶ 29, 363

P.3d 155, 164. The court clarified that “circumstances attending

the act or conduct” means “those elements of the offense describing

the prohibited act itself and the circumstances surrounding its

commission, including a required mental state, if any; as

distinguished from any element requiring that such act have a

particular effect, or cause a particular result.” Id. “With regard to

causing a particular result that is an element of the offense in

question, rather than mandating that a complicitor himself act with

the kind of culpability otherwise required for commission of the

offense,” for complicitor liability to attach, “the complicitor [must]

act with an awareness the principal is or would be acting with that

required mental state.” Id.

¶ 20 Under the prosecution’s complicity theory of liability, and

consistent with the jury instructions, the prosecution needed to

introduce sufficient evidence to prove that the following occurred

during the robbery or in the immediate flight therefrom:

• For count 2, Vargas-Vigil had a confederate present —

Garcia — who was aiding or abetting the perpetration of

9 the aggravated robbery, and who was armed with a

deadly weapon, and either Garcia or Vargas-Vigil

intended, by the use of force, threats, or intimidation, to

put the victim in reasonable fear of death or bodily

injury. See § 18-4-302(1)(c).

• For count 3, Vargas-Vigil had a confederate present —

the aggravated robbery, and who was armed with a

intended, if the victim offered resistance, to kill, maim, or

wound him. See id.

• For count 4, Vargas-Vigil knowingly, by the use of force,

threats, or intimidation, with a deadly weapon, put the

victim in reasonable fear of death or bodily injury. See

§ 18-4-302(1)(b).

• For count 5, Vargas-Vigil knowingly wounded or struck

the victim with a deadly weapon. See id.

• For count 6, Vargas-Vigil was armed with a deadly

weapon with the intent, if resisted, to kill, maim, or

wound the victim. See § 18-4-302(1)(a).

10 ¶ 21 Garcia did not dispute that he was present at the scene or that

Vargas-Vigil shot the victim. Although Garcia argued that he

believed he and Vargas-Vigil would merely be engaging in a “routine

marijuana buy,” the evidence showed that immediately before the

robbery Garcia and Vargas-Vigil were together in Vargas-Vigil’s

apartment; they spoke to Vargas-Vigil’s brother about “having to do

something real quick”; and, significantly, Garcia was present when

Vargas-Vigil moved a handgun from under a couch pillow to his

waist. Moreover, Garcia accompanied Vargas-Vigil to the victim’s

truck, stood outside the driver’s side door — potentially blocking

the victim’s escape — while the victim sat in the truck with

Vargas-Vigil, fled the scene with Vargas-Vigil, and picked up a

stolen item that Vargas-Vigil had dropped. Furthermore, the

prosecution introduced evidence that Garcia possessed a firearm in

the weeks before and days after the offense, see infra Part II.B. See

Hard, ¶ 39, 342 P.3d at 579.

¶ 22 Thus, viewing the evidence in the light most favorable to the

prosecution and giving the prosecution the benefit of all reasonable

inferences that can be drawn from the evidence, the evidence was

substantial and sufficient to support a conclusion by a reasonable

11 mind that Garcia was guilty, beyond a reasonable doubt, of the five

counts of aggravated robbery as a complicitor. See Johnson, ¶ 13,

524 at 40; Martinez, ¶ 46, 552 P.3d at 560.

ii. Principal Liability

¶ 23 The trial court also instructed the jury on a principal theory of

liability for counts 2, 3, and 6. Although not necessary to reject

Garcia’s sufficiency of the evidence challenge, in an abundance of

caution, we will also review whether the evidence was sufficient to

sustain Garcia’s aggravated robbery convictions as a principal.

¶ 24 To convict Garcia as a principal on these counts, the

prosecution needed to prove that Garcia committed each element of

aggravated robbery. As discussed supra Part II.A.2.b.i., the

evidence supported the jury’s findings that Garcia knowingly took

items from the victim because he picked up the dropped bag while

running away from the truck and, as one witness testified, both

Vargas-Vigil and Garcia appeared to “collect[] things” from inside

the truck. Additionally, the jury could have reasonably found that

Garcia used force, threats, or intimidation through the evidence

that Garcia was armed and potentially blocked the victim from

leaving the truck.

12 ¶ 25 In addition, the prosecution introduced sufficient evidence to

prove the unique elements of each principal liability count:

• For count 2, Garcia had a confederate present —

Vargas-Vigil — who was armed with a deadly weapon,

and either Vargas-Vigil or Garcia intended, by the use of

force, threats, or intimidation, to put the victim in

reasonable fear of death or bodily injury. See

§ 18-4-302(1)(c).

• For count 3, Garcia had a confederate present —

and either Vargas-Vigil or Garcia intended, if resistance

was offered, to kill, maim, or wound the victim. See id.

• For count 6, Garcia was armed with a deadly weapon

with the intent, if resisted, to kill, maim, or wound the

victim. See § 18-4-302(1)(a).

¶ 26 For counts 2 and 3, as discussed supra Part II.A.2.b.i., Garcia

does not dispute that he and Vargas-Vigil were present at the scene

or that Vargas-Vigil was armed. The evidence was therefore

sufficient to establish that both Vargas-Vigil and Garcia intended to

put the victim in fear for his life or kill, maim, or wound him. See

13 § 18-4-302(1)(c). For these reasons, the evidence was also sufficient

to sustain Garcia’s conviction as a principal for count 6. See

§ 18-4-302(1)(a).

3. Felony Murder

a. Substantive Law

¶ 27 We next turn to the evidence supporting Garcia’s felony

murder conviction. The trial court instructed the jury that simple

robbery was the predicate felony supporting the felony murder

count. See § 18-3-103(1)(b), C.R.S. 2025. Accordingly, to convict

Garcia of felony murder, the prosecution bore the burden of proving

that Garcia committed or attempted to commit simple robbery

(either as a principal or a complicitor), and “in the course of or in

furtherance of” the robbery or during “immediate flight therefrom,”

any participant caused “the death of a person, other than one of the

participants.” Id.

b. The Evidence Was Sufficient to Sustain Garcia’s Felony Murder Conviction

¶ 28 Garcia contends that the prosecution failed to present

sufficient evidence to prove that he committed the predicate felony

of robbery. As noted, however, supra Part II.A.2.b, the evidence was

14 sufficient to convict Garcia of aggravated robbery and, therefore,

also the lesser included offense of simple robbery. (As also noted

above, Garcia does not dispute that Vargas-Vigil caused the victim’s

death.)

c. The Evidence Was Sufficient to Disprove Garcia’s Affirmative Defense of Disengagement

¶ 29 Next, Garcia contends that the prosecution failed to disprove

his disengagement affirmative defense to felony murder.

Disengagement is an affirmative defense when the defendant

(1) was not the only participant in the underlying crime;

(2) did not commit the homicidal act or in any way solicit,

request, command, importune, cause, or aid in the

commission thereof;

(3) was not armed with a deadly weapon; and

(4) did not engage in or intend to engage in and had no

reasonable ground to believe that any other participant

intended to engage in conduct likely to result in death or

serious bodily injury.

§ 18-3-103(1.5).

15 ¶ 30 The prosecution was required to disprove Garcia’s

disengagement affirmative defense, as well as prove the elements of

felony murder, beyond a reasonable doubt. § 18-1-407, C.R.S.

2025. The prosecution could defeat the affirmative defense by

disproving any one of its elements. See People v. Gallegos, 2025 CO

41M, ¶ 15, 572 P.3d 136, 141 (“Prosecutors can overcome an

affirmative defense by disproving at least one of its conditions

beyond a reasonable doubt.”).

¶ 31 There is no dispute that the first element of disengagement is

satisfied because both Garcia and Vargas-Vigil participated in the

robbery. Thus, we focus on whether the prosecution “presented

sufficient evidence to disprove” either the second, third, or fourth

element of the affirmative defense. Harrison, ¶ 30, 465 P.3d at 23.

¶ 32 Turning to the second element of disengagement, the People

contend that Garcia “took numerous steps to aid in [the robbery’s]

commission” even if he did not commit the “homicidal act.” To

support this assertion, the People point to the evidence showing

that Garcia had advance knowledge that Vargas-Vigil would bring a

gun to the meeting with the victim; Garcia stood “outside the

driver’s side door, which would prevent any attempt by [the victim]

16 to escape”; and he brought an empty bag to the meeting. Garcia

contends that he believed he and Vargas-Vigil would merely be

engaging in a “routine marijuana buy.” In addition, he disputes

that he tried to block the victim from escaping from the truck,

noting that his position outside the driver’s side door meant he was

“in the line of fire” when Vargas-Vigil shot the victim.

¶ 33 But it is not our role to weigh the prosecution’s evidence in a

sufficiency challenge, see Gray, ¶ 32, 568 P.3d at 453; instead, we

must view the evidence in the light most favorable to the

prosecution, see Johnson, ¶ 13, 524 P.3d at 40.

¶ 34 We conclude that a reasonable jury could have disbelieved

Garcia’s argument that he did not know of Vargas-Vigil’s intent to

harm the victim because Vargas-Vigil brought a gun to a “routine”

transaction and Garcia placed himself in a position where he could

block the victim from escaping and, thereby, aided Vargas-Vigil in

causing the victim’s death.

¶ 35 For these reasons, we hold that the prosecution presented

sufficient evidence to disprove Garcia’s affirmative defense of

disengagement beyond a reasonable doubt.

17 ¶ 36 Having concluded that the evidence was sufficient to sustain

Garcia’s convictions, we now turn to his assertions of trial error

that he asserts necessitate a new trial.

B. The Other Act Evidence

¶ 37 Garcia contends that the trial court abused its discretion by

admitting evidence showing that he handled weapons before and

after the robbery (the other act evidence). The trial court allowed

the jury to view Facebook photos showing Garcia holding a gun on

June 6, 2022, and September 24, 2022; Garcia’s statement in a

September 27, 2022, Facebook message that he wanted to buy a

gun (collectively, the social media evidence); and evidence that

Garcia possessed a gun when he was arrested for a different offense

six days after the robbery (the arrest evidence).

¶ 38 We agree with Garcia that the trial court abused its discretion

by admitting this other act evidence.

¶ 39 “We review a trial court’s evidentiary rulings for an abuse of

discretion.” People v. Cross, 2023 COA 24, ¶ 9, 531 P.3d 444, 447

(quoting Rojas v. People, 2022 CO 8, ¶ 16, 504 P.3d 296, 302). “A

trial court abuses its discretion if it misconstrues or misapplies the

18 law or otherwise reaches a manifestly arbitrary, unreasonable, or

unfair result.” People v. Johnson, 2019 COA 159, ¶ 10, 487 P.3d

1166, 1171, aff’d, 2021 CO 35, 486 P.3d 1154.

¶ 40 When a defendant timely objects to the admission of evidence,

as here, “any error that occurred in the admission of this evidence

is subject to non-constitutional harmless error review.” Pernell v.

People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673. Under this standard,

“an objected-to trial error is harmless if there is no reasonable

possibility that it contributed to the defendant’s conviction.” Id.

2. Applicable Law

¶ 41 “Unless otherwise provided by constitution, statute or rule, all

relevant evidence is admissible.” People v. Spoto, 795 P.2d 1314,

1318 (Colo. 1990); CRE 402. Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than

it would be without the evidence.” CRE 401. Evidence of a person’s

habit or routine practice is relevant to “prove that the conduct of

the person . . . on a particular occasion was in conformity with the

habit or routine practice.” CRE 406.

19 ¶ 42 But 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.” CRE 403.

¶ 43 In addition, CRE 404(b)(1) bars the admission of “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 with the character.” This evidence may nonetheless be

admitted for “another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.” CRE 404(b)(2).

¶ 44 If the court determines that the defendant committed the other

acts, the court must then “determine if the evidence is intrinsic or

extrinsic to the charged offense.” Rojas, ¶ 52, 504 P.3d at 309;

Cross, ¶ 14, 531 P.3d at 448. “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.” Rojas, ¶ 52, 504 P.3d at 309. Intrinsic evidence

is not subject to a CRE 404(b) analysis because it does not concern

20 other crimes, wrongs, or acts. Id. Accordingly, courts evaluate the

admissibility of intrinsic evidence under CRE 401 to 403. Id.

¶ 45 In contrast, extrinsic evidence is evidence of other crimes,

wrongs, or acts that does not directly prove the charged offense.

See id. 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.” Id.

¶ 46 Other act evidence is admissible under Spoto only if it

“(1) relates to a material fact; (2) is logically relevant; (3) has a

logical relevance independent of the prohibited intermediate

inference that the defendant has a bad character; and (4) does not

result in unfair prejudice to the defendant that substantially

outweighs the probative value of the evidence.” Cross, ¶ 14, 531

P.3d at 448.

3. The Social Media Evidence

a. Additional Facts

¶ 47 The prosecution filed a pretrial notice of its intent to introduce

into evidence “[s]ocial media records showing the defendant’s gun

possession between May – October 2022.” The prosecution said it

21 intended to introduce the following evidence, among other evidence

from Facebook:

• Two photos depicting Garcia with a gun on June 6, 2022.

• A similar photo from September 24, 2022.

• A photo of a handgun and a corresponding message from

September 27, 2022, in which Garcia said, “I’ll buy rn,”

meaning he would purchase the gun “right now.” The

handgun depicted in the September 27 photo is not the

same weapon shown in the earlier photos.

¶ 48 The prosecution argued that the social media evidence

established that Garcia “regularly carried a firearm between May –

October 2022”; was “admissible pursuant to CRE 406, as his habit

of carrying a firearm”; and was “relevant to prove that his conduct

on the day of the homicide was in conformity with that habit.” The

prosecution further asserted that, even if the social media evidence

was not admissible habit evidence under CRE 406, it was

nonetheless admissible intrinsic evidence showing that Garcia

“regularly carried a firearm” and that “directly prove[d] each of the

charged counts.”

22 ¶ 49 In the alternative, the prosecution argued that, even if the

social media evidence was extrinsic, it was admissible under

CRE 404(b) because it related to a material fact — whether Garcia

“possessed a firearm during the crime” — and that Garcia’s “habit”

of carrying a firearm was “relevant as to whether he acted in

conformity with that habit” at the time of the robbery. The

prosecution asserted that the social media evidence did not suggest

Garcia had a “bad character” for two reasons — possession of a

firearm is not unlawful, and the evidence’s probative value

substantially outweighed the danger of unfair prejudice because

“carrying a firearm does not inherently infer a negative character

trait.”

¶ 50 The trial court rejected the prosecution’s argument that the

social media evidence was admissible habit evidence under

CRE 406 and ruled it was extrinsic evidence because the

prosecution had not shown that the “guns pictured or used or

discussed” were “the murder weapon” or “part of the crimes charged

here.” (Despite the trial court’s reference to a “murder weapon,” the

prosecution did not suggest that Garcia shot the victim.) The court

said that the social media evidence “does show [Garcia] apparently

23 likes guns . . . and thus there’s some danger of propensity, under

404(b),” that “require[d] a 404(b) analysis.”

¶ 51 After conducting a Spoto analysis, the trial court concluded

that the September 24 gun photo was admissible for four reasons:

(1) It was relevant to Garcia’s disengagement affirmative

defense.

(2) It had some tendency to make it more or less probable

that Garcia was armed on the day of the robbery,

eighteen days later.

(3) The photo’s relevance was independent of the improper

inference of bad character because of its temporal

proximity to the robbery.

(4) Although there was “some danger of prejudice,” the photo

“relate[d] to a fact of consequence”; a “long chain of

inferences” was unnecessary to understand the photo’s

relevance; there were few alternative means to establish

that Garcia was armed on the day of the robbery; and

other evidence established that Vargas-Vigil, and not

Garcia, possessed a gun at the time of the robbery.

24 ¶ 52 Following this reasoning, the trial court concluded that the

September 27 photo and message were also admissible. The court

noted their “close[ness] in time” to the robbery and said that,

although the September 27 message — in which Garcia indicated

his desire to purchase a gun — could give rise to an inference that

he “perhaps broke the law” for unspecified reasons by buying a gun,

under the third Spoto factor, the message’s relevance could be

separated from an improper inference of bad character. Applying

the fourth Spoto factor, the trial court found that, although there

was “danger of prejudice” if Garcia’s statement about buying a gun

was admitted, the danger of unfair prejudice did not outweigh the

evidence’s probative value because of its closeness in time to the

robbery, and the evidence was minimally prejudicial because its

weight “really point[ed] to [Vargas-Vigil] having a gun, not [Garcia]

having a gun.”

¶ 53 The trial court found that the June 6 photo was also

admissible under Spoto. Although the court noted the June 6 photo

was “more remote in time” than the September photos and

message, it reasoned that the photo showed that Garcia “appear[ed]

to feel comfortable” with guns and had “some tendency” to make it

25 more probable that Garcia “was armed on the date of the offense.”

Although the trial court said it “suppose[d]” the June 6 photo

created an inference that Garcia had a bad character, it determined

that “the jury should be able to separate any [inference] of bad

conduct” from the photo’s relevance.

¶ 54 As with the September photos and message, the trial court

said it would admit the June 6 photo into evidence “subject to a

limiting instruction that the jury may only consider it as it relates to

whether the defendant was armed on the date of the offense.”

b. The Trial Court Abused Its Discretion by Admitting the Social Media Evidence

¶ 55 The trial court supported its conclusion that the September 24

and 27 social media evidence was logically relevant and

independent of Garcia’s bad character by finding that the photos

and message were “close in time” to the robbery. Yet the trial court

acknowledged that no evidence linked the guns depicted in the

photos to any weapon used during the robbery. The trial court

further admitted the June 6 photo into evidence, even though it was

“remote in time” to the robbery, because Garcia’s apparent

“comfort[]” with a gun had “some tendency” to make it more

26 probable that Garcia “was armed on the date of the offense.” We

agree with Garcia that the court abused its discretion by admitting

the social media evidence because it is inadmissible under the third

Spoto factor.

¶ 56 In Yusem v. People, the supreme court concluded that

evidence of the defendant’s prior gun possession was inadmissible

under Spoto’s third factor because such evidence “lack[ed] . . .

similarity” to the charged offense and the prior act did not

“demonstrate[] a specific tendency” to “use a gun in a particular

manner.” 210 P.3d 458, 467 (Colo. 2009).

¶ 57 Similarly, the June 6 and September 24 photos do not support

any “specific tendency” other than that Garcia posed with guns

before the robbery. Id. at 466-67. The trial court found that the

June 6 photo was admissible based on the prosecution’s propensity

argument — that Garcia was the type of person who “appear[ed]”

comfortable with guns, always had a gun in his possession, and,

thus, was more likely to commit an aggravated robbery. Although

the September 27 photo and message show Garcia’s interest in

purchasing a gun, as Garcia points out, no evidence showed that he

ever purchased the gun, nor was he arrested with the gun depicted

27 in the photo. Nevertheless, the court ruled that the evidence was

admissible to establish that Garcia “bought that gun” and said that

“the jury could find [Garcia bought the gun] illegally.” But Garcia’s

interest in purchasing a gun does not show that he had any

“specific tendency” other than what he said in the message — he

had an interest in guns and an opportunity to buy one. Yusem,

210 P.3d at 467. Moreover, the trial court acknowledged that all

the gun photos and messages presented the “danger of

propensity” — that their admission into evidence could result in

Garcia’s conviction for aggravated robbery based on an improper

inference that he has a bad character.

¶ 58 The trial court’s concerns were well founded. Even giving the

social media evidence its maximum probative value, photos merely

showing Garcia with guns or demonstrating his interest in

purchasing a gun have minimal probative value when compared to

the risk that, after viewing the evidence, the jury would convict

Garcia because of a perceived bad character. See Kaufman v.

People, 202 P.3d 542, 555 (Colo. 2009) (determining that evidence

of lawful possession of weapons not used in the commission of the

subject crime fails the third Spoto factor); see also People v. Archer,

28 99 Cal. Rptr. 2d 230, 238 (Ct. App. 2000) (“Evidence of possession

of a weapon not used in the crime charged against a defendant

leads logically only to an inference that [the] defendant is the kind

of person who surrounds himself with deadly weapons — a fact of

no relevant consequence to determination of the guilt or innocence

of the defendant.” (emphasis added) (quoting People v. Henderson,

129 Cal. Rptr. 844, 851 (Ct. App. 1976))).

¶ 59 For these reasons, we conclude that any logical relevance of

the social media evidence was not independent of an improper

propensity inference and that the risk of unfair prejudice

outweighed the evidence’s probative value, if any. Thus, the trial

court abused its discretion by admitting the social media evidence.

4. The Arrest Evidence

¶ 60 In addition to allowing the social media evidence, the trial

court said it would admit evidence of the “[c]ircumstances of

[Garcia]’s arrest related to this case.” The prosecution sought to

introduce evidence showing that, as relevant here, when officers

searched Garcia incident to his arrest, they found “a tan Glock 19X

concealed inside of his shorts pocket, loaded with [seventeen] live

29 rounds and one in the chamber, and an additional live round in his

pocket.”

¶ 61 The prosecution argued that the arrest evidence established

that he “regularly carried a firearm between May – October 2022.”

Further, the prosecution asserted that the arrest evidence was

intrinsic and was either admissible under CRE 406 to establish that

Garcia “was in possession of a firearm in close time to the charged

offense” or under CRE 404(b) for the same reasons that the social

media evidence was admissible.

¶ 62 The trial court concluded that the arrest evidence was intrinsic

because the gun found at the time of Garcia’s arrest was “direct

evidence to overcome” his disengagement affirmative defense. Even

though the trial court said the arrest evidence was intrinsic, it

nonetheless conducted a Spoto analysis and concluded that the

arrest evidence was admissible under CRE 404(b). The trial court

found that the arrest evidence related to a material fact — Garcia’s

possession of a firearm during the robbery; was logically relevant;

and rebutted his disengagement affirmative defense. (The record

does not indicate whether the trial court also analyzed the arrest

evidence under the third and fourth Spoto factors.)

30 b. The Arrest Evidence Was Not Intrinsic

¶ 63 We disagree with the trial court that the arrest evidence was

intrinsic.

¶ 64 First, it was not direct evidence that could prove the

aggravated robbery counts or disprove the disengagement defense.

Unlike in Rojas, where the supreme court concluded that a revolver

seized from the defendant during his arrest one week after the

charged crime “was ‘intrinsic, direct evidence’ that he used the

same revolver during the attempted robbery,” no direct evidence

showed that Garcia was armed with a deadly weapon at the time of

the robbery. Rojas, ¶ 50, 504 P.3d at 309 (quoting United States v.

Shea, 159 F.3d 37, 39 (1st Cir. 1998)); see also People v. Samuels,

228 P.3d 229, 244-45 (Colo. App. 2009) (concluding that testimony

that the defendant “always” carried the type of gun used in the

commission of the charged offense “circumstantially linked” the

defendant to the crime and was direct evidence supporting the

defendant’s conviction of possession of a weapon by a previous

offender).

¶ 65 Like the social media evidence, which the trial court correctly

determined was extrinsic because no evidence tied the guns shown

31 in the photos to the robbery, there was no evidence that, at the time

of the robbery, Garcia possessed the gun that the police seized

when he was arrested. And because none of the guns depicted in

the Facebook photos were the weapon that Garcia possessed when

arrested, the arrest evidence could not establish that he

continuously possessed a specific gun from June 6 — or

September 24 or 27 — through the date of his arrest. Thus, unlike

the gun discussed in Rojas, the gun found in Garcia’s possession at

the time of his arrest did not directly establish that he was armed

with a deadly weapon during the robbery. See Rojas, ¶¶ 49-50, 504

P.3d at 309.

¶ 66 Second, we do not agree with the trial court’s determination

that evidence obtained during Garcia’s arrest for a different offense

six days after the robbery can be deemed “contemporaneous[] with

the charged offense.” Id. at ¶ 52, 504 P.3d at 309; see also State v.

Vandree, 298 A.3d 1114, 1123 (N.J. Super. Ct. App. Div. 2023)

(holding that a search is “reasonably contemporaneous” to an arrest

if both occur “as parts of a single transaction, as connected units of

an integrated incident” (quoting State v. Lentz, 229 A.3d 536, 546

(N.J. Super. Ct. App. Div. 2020))). The trial court apparently

32 considered the arrest “contemporaneous” with the robbery because,

in the court’s view, the arrest was “a continuation of [Garcia’s]

flight” from the crime scene. But courts do not interpret

“contemporaneous” so broadly. See, e.g., Rojas, ¶ 46, 504 P.3d at

308 (distinguishing the facts in United States v. Roberson, 581 F.

Supp. 3d 65, 73 (D.D.C. 2022), where the communications at issue

took place “within minutes” of the offense and thus “occurred

contemporaneously” with it, from Rojas’s extrinsic action, which

took place days after the alleged crime); People v. Moore, 902 P.2d

366, 370 (Colo. App. 1994) (affirming the admission of evidence

showing that the defendant assaulted someone “approximately

[thirty] minutes” before the victim was assaulted and noting that

“[c]ontemporaneous does not mean simultaneous”), aff’d, 925 P.2d

264 (Colo. 1996); People v. Bennett, 129 Cal. Rptr. 679, 685 (Ct.

App. 1976) (“[C]ontemporaneous means ‘at or near the same time’

and is synonymous with ‘simultaneous’ and ‘concurrent.’” (quoting

Webster’s Third New International Dictionary 491 (2002))); cf.

People v. Gilkey, 507 P.2d 855, 856-57 (Colo. 1973) (concluding, in

a case involving the res gestae doctrine later abolished in Rojas,

33 that a defendant’s statement to police made twelve hours after the

offense was not contemporaneous with it).

¶ 67 Even if we were to assume that the arrest evidence was

“contemporaneous[] with the charged offense,” such evidence was

not connected to “facilitat[ing] the commission” of the robbery.

Rojas, ¶ 52, 504 P.3d at 309. As the trial court noted, there was

“scant” evidence that Garcia was armed with a deadly weapon

during the robbery — only the social media evidence and the fact he

possessed a gun when arrested supported the “armed with a deadly

weapon” element of aggravated robbery. § 18-4-302(1). Garcia’s

possession of a gun six days after the robbery could not have

furthered a robbery committed six days earlier, cf. People v.

Tweedy, 126 P.3d 303, 308 (Colo. App. 2005) (explaining that, for

purposes of a weapon misconduct charge, a weapon is used to

“facilitate crime” when it “further[s] the . . . offense underlying the

weapons misconduct charge”), nor did it “complete[] the story or

provide[] context to the charged crime,” United States v. Fogg, 922

F.3d 389, 393 (8th Cir. 2019) (quoting United States v. Young, 753

F.3d 757, 767 (8th Cir. 2014)), or “explain[] why” Garcia

participated in the robbery, id. (quoting United States v. Williams,

34 796 F.3d 951, 961 (8th Cir. 2015)). Moreover, the circumstances of

the arrest were dissimilar to the circumstances of the robbery. See

Yusem, 210 P.3d at 467 (explaining that other acts with a “high

degree of similarity” to the defendant’s behavior in the charged

offense make it “easier for the jury to identify the probative value of

the evidence”). We therefore conclude that the arrest evidence was

extrinsic.

¶ 68 We next turn to whether the arrest evidence was admissible

under Spoto.

c. The Trial Court Abused Its Discretion by Admitting the Arrest Evidence Under Spoto

¶ 69 As noted supra Part II.A.4.a, the trial court did not evaluate

the admissibility of the arrest evidence under the third and fourth

Spoto factors. We may, however, conduct a full Spoto analysis on

appeal. See People v. Martinez, 36 P.3d 154, 158-61 (Colo. App.

2001) (conducting a CRE 404(b) analysis for the first time on

appeal).

¶ 70 Even assuming that the arrest evidence satisfied the first and

second Spoto factors, we conclude that it fails under the third and

fourth factors for the same reasons we held that the social media

35 evidence was inadmissible. To impute to Garcia gun possession

during the robbery because he possessed a gun six days later

necessarily rests on the improper inference that Garcia was a

reckless and dangerous person who always carried a gun and

therefore was more likely to act in conformity with that character on

the day of the robbery. Thus, the jury would have needed to draw

an improper inference for the arrest evidence to be relevant; the

logical relevance of Garcia’s later gun possession cannot be

separated from the inference that he possessed a bad character.

¶ 71 Furthermore, even if the relevance of the arrest evidence could

be separated from any inference of bad character, the risk of unfair

prejudice to Garcia was high. That Garcia was armed nearly a week

after the robbery added limited probative value in determining

whether he was armed with a deadly weapon when he and

Vargas-Vigil confronted the victim. But it did paint Garcia as the

sort of person who would aid and abet a robbery.

¶ 72 For these reasons, we conclude that the trial court abused its

discretion by admitting the arrest evidence.

36 5. The Trial Court’s Abuse of Discretion Was Not Harmless

¶ 73 The People argue that any error in admitting the other act

evidence was harmless because Garcia’s culpability for felony

murder did not rest on whether he shot the victim and because the

jury was instructed to consider the evidence only for a limited

purpose. We are not persuaded.

¶ 74 The prejudicial risk from the improper admission of the other

act evidence flowed from its tendency to cast Garcia as a person

who was both enamored with and cavalier around guns. That

evidence suggested that, because he was armed on the day of the

robbery, it was more likely that he knew the interaction would be

more than a simple drug purchase. Yet the initial limiting

instruction the court gave the jury specifically permitted it to

consider such evidence when determining whether Garcia was

armed on the day of the murder. This was not a limitation but,

rather, a grant of permission to consider evidence of Garcia’s

character and whether he acted in conformity with that character

on the day of the robbery. Consequently, the People have not

demonstrated that there was no reasonable probability that the

37 error contributed to Garcia’s conviction. See Pernell, ¶ 22, 411 P.3d

at 673.

¶ 75 Moreover, we have no way of knowing whether the jury

convicted Garcia of felony murder because it believed he was armed

at the time he and Vargas-Vigil confronted the victim. The jury

could have concluded that Garcia used “force, threats, or

intimidation” because he wielded a gun during the robbery.

§ 18-4-302(1)(b)-(c). We know that the jury rejected Garcia’s

disengagement affirmative defense, an element of which was that

Garcia was not armed at the time. See § 18-3-103(1.5)(c). Thus,

the jury may have disbelieved Garcia’s affirmative defense because

it accepted the prosecution’s argument that Garcia was armed at

the time of the robbery. Moreover, although the trial court limited

the scope of the other act evidence by instructing the jury to

consider it for “the purpose of determining if [Garcia] was armed on

the date of the offense only,” the court did not also tell the jury it

could not consider such evidence when deliberating on felony

murder.

¶ 76 Accordingly, we cannot say that the improperly admitted

evidence did not taint all of Garcia’s convictions, including his

38 felony murder conviction. (As noted above, the trial court merged

all Garcia’s aggravated robbery convictions into the felony murder

conviction.)

¶ 77 For these reasons, we reverse all of Garcia’s convictions and

C. The Theory of Defense Instruction

¶ 78 Garcia contends the trial court erred by rejecting his theory of

defense instruction and instead giving an instruction that

“implicitly conceded a disputed fact.” We address this issue

because it is likely to arise on remand. We disagree.

1. Standard of Review and Substantive Law

¶ 79 We review a trial court’s decision “to modify a tendered theory

of defense instruction for an abuse of discretion.” People v.

Martinez, 2020 COA 141, ¶ 79, 486 P.3d 412, 426. “In analyzing

whether the trial court abused its discretion, we review the

instructions as a whole to determine whether the jury was

‘adequately informed of the defendant’s theory of defense.’” Id. at

¶ 80, 486 P.3d at 426 (quoting People v. Dore, 997 P.2d 1214, 1222

(Colo. App. 1999)).

39 ¶ 80 A trial court must give an “instruction embodying a

defendant’s theory of the case” so long as “the record contains any

evidence to support the theory.” Id. at ¶ 81, 486 P.3d at 426

(quoting People v. Nunez, 841 P.2d 261, 264 (Colo. 1992)). “A

proper theory of the case instruction should explain [the]

defendant’s view of what the evidence shows, must be general and

brief, and must instruct the jury on the legal effect of the

explanation.” Id. at ¶ 81, 486 P.3d at 426-27 (quoting People v.

Meads, 58 P.3d 1137, 1138 (Colo. App. 2002)). But a trial court

may properly refuse to give a theory of defense instruction that is

“argumentative, contains errors of law, merely reiterates portions of

the evidence, or is encompassed within the other instructions.” Id.

at ¶ 82, 486 P.3d at 427 (quoting People v. Lee, 30 P.3d 686, 689

(Colo. App. 2000)).

¶ 81 If the trial court rejects a tendered theory of defense

instruction, it “has an affirmative obligation to cooperate with

counsel to either correct the tendered theory of the case instruction

or to incorporate the substance of such in an instruction drafted by

the court.” Id. (quoting Nunez, 841 P.2d at 265).

40 2. Additional Facts

¶ 82 Garcia’s counsel tendered the following theory of defense

instruction:

Garcia asserts he believed he was going to [the victim’s] truck with [Vargas-Vigil] to [buy] marijuana. [Garcia] asserts that, once at the truck, [Vargas-Vigil] acted alone and impetuously to rob and kill [the victim]. [Garcia] did not know that [Vargas-Vigil] intended to rob [the victim]. Because [Garcia] did not know that [Vargas-Vigil] would rob [the victim], he could not aid, abet, advise or encourage [Vargas-Vigil] in the planning or commission of the aggravated robbery. Further, [Vargas-Vigil] acted alone when he took items from [the victim] and his truck.

¶ 83 The court found that this instruction was improper because it

was “argumentative” and “highlight[ed] certain portions of

evidence.” The court then drafted a shortened version of the

instruction: Garcia “asserts he did not aid, abet, advise or

encourage . . . Vargas-Vigil in the planning or commission of the

crimes charged. Further, . . . Vargas-Vigil acted alone when he

robbed and killed [the victim].”

¶ 84 Defense counsel objected to the rewritten instruction,

asserting that “a simple denial of the elements” of the crimes

charged was “not sufficient for a theory of defense” because the

41 prosecution proceeded on “multiple theories that require[d] multiple

types of defenses.” In addition, defense counsel objected to omitting

her proposed language addressing “what was happening as [Garcia

and Vargas-Vigil] were going to the truck.” The court, however,

determined that the “planning or commission” language in the

revised instruction took those actions into account. The court said

the rewritten instruction “incorporate[ed] the ideas that were

presented in the original [instruction] submitted to the [c]ourt” and

“just streamline[d]” them.

3. The Court Did Not Err by Declining to Give Garcia’s Theory of Defense Instruction or by Modifying It

¶ 85 Garcia contends that the trial court abused its discretion by

rejecting and modifying his theory of defense instruction because

the modified instruction “implicitly conceded” a material fact.

Garcia contends that the modified theory of defense instruction

“assumed Garcia had [advance] knowledge” of the robbery and

murder, and asserts that “no part of the court’s instruction denied

Garcia knew Vargas-Vigil intended to rob the victim.” Garcia

argues that the court’s instruction therefore improperly implied that

42 Garcia “knew but stood by” during the robbery. We are

unpersuaded.

¶ 86 Reviewing the jury instructions as a whole, the jury was

adequately instructed regarding Garcia’s theory of defense. The

court’s modified instruction did not concede that Garcia possessed

advance knowledge of Vargas-Vigil’s intentions. And the other jury

instructions correctly informed the jury that the prosecution bore

the burden of proving every element of the crimes charged, that

whether Garcia acted knowingly or intentionally was an element of

the crimes, and that the prosecution bore the burden of proving

each element of the offenses beyond a reasonable doubt. A

defendant’s theory of defense instruction is not insufficient merely

because it does not negate every element of the crime charged. See

People v. Marquez-Lopez, 952 P.2d 788, 791 (Colo. App. 1997)

(holding there was no reversible error when the court declined to

give the defendant’s theory of defense instruction, “which, as

tendered, recited that [the] defendant did not knowingly” commit

the charged crime because “the requirement that the prosecution

establish the element of ‘knowingly’ was covered in other

instructions to the jury on elements of the charged crime”).

43 ¶ 87 Further, the trial court’s modified instruction did not concede

any element of the charged crimes. The instruction was consistent

with Garcia’s theory of defense — that he did not participate in the

“planning or commission” of the charged crimes — because the

instruction encompassed whether he had advance knowledge of

Vargas-Vigil’s intentions. The court’s instruction did not relieve the

prosecution from its burden to prove Garcia’s mental state for each

of the charged crimes beyond a reasonable doubt. Further, the

defense argued in closing that Garcia did not have advance

knowledge of Vargas-Vigil’s plan. See People v. Trujillo, 2018 COA

12, ¶ 14, 433 P.3d 78, 83 (“In considering whether a jury was

adequately informed of a defendant’s theory of the case, a reviewing

court can take into account whether defense counsel’s closing

argument ‘fairly represented’ the theory to the jury.” (quoting Dore,

997 P.2d at 1222)).

¶ 88 Finally, we reject Garcia’s argument that the court’s

instruction was inadequate in light of the prosecution’s decision to

“proceed[] on multiple theories” related to whether Garcia was a

principal or a complicitor. To the contrary, the court’s instruction

“accurately described” Garcia’s theory of defense regardless of

44 whether the prosecution argued he was a principal or a complicitor.

People v. Bruno, 2014 COA 158, ¶ 21, 342 P.3d 587, 592.

¶ 89 Thus, we hold that the trial court did not abuse its discretion

by rejecting Garcia’s tendered theory of defense instruction as

written and instead modifying it.

III. Disposition

¶ 90 Garcia’s convictions are reversed and the case is remanded for

a new trial.

JUDGE WELLING and JUDGE TOW concur.