22CA1856 Peo v Gonzalez 12-11-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1856 Jefferson County District Court No. 20CR3397 Honorable Lindsay VanGilder, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jorge Antillion Gonzalez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Grove and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 11, 2025
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jorge Antillion Gonzalez, appeals the judgment of
conviction entered on a jury verdict finding him guilty of sexual
assault on a child by one in a position of trust. We affirm.
I. Background
¶2 The prosecution presented the following evidence at trial.
¶3 J.B. is the named victim in this case. In 2019, J.B.’s mother
defaulted on her rental payments for a storage unit, of which
Gonzalez was an authorized user. The contents of the storage unit
were purchased by a third party, and the new owner found a cell
phone in a briefcase and Gonzalez’s social security card in a box of
documents.
¶4 The owner took the SD card out of the phone and looked at its
contents. Six videos on the card, which were time-stamped
between August 1, 2017, and September 25, 2017, showed J.B.,
who was eight years old at the time, asleep. The videos showed a
hand lifting J.B.’s bedcovers off and pushing her underwear aside
to touch her genitalia. A seventh video, time-stamped August 7,
2017, showed Gonzalez’s face and depicted him pulling the
bedcovers off A.B. (J.B.’s sibling) while she was sleeping, fully
clothed, and then putting them back down (August 7 video). The
1 majority of the remaining content on the SD card related to
Gonzalez, including “selfies” of Gonzalez, photos of Gonzalez with
his dog, and photos of J.B. and A.B. The new owner of the storage
unit took the cell phone, the SD card, and the social security card
to the police.
¶5 The People charged Gonzalez with one count of sexual assault
on a child (J.B.) by a person in a position of trust. That count
alleged that the victim was under fifteen years old and that the
crime occurred as a part of a pattern of abuse between August 1,
2017, and September 25, 2017. The People also charged Gonzalez
with eleven counts of sexual exploitation of children (all identifying
J.B. as the victim), one count of attempted sexual exploitation of
children (identifying A.B. as the victim), and a habitual sexual
offender against children sentence enhancer. The prosecution later
moved to dismiss the sentence enhancer, and the trial court
granted that motion. The trial court subsequently dismissed the
sexual exploitation charges on double jeopardy grounds because, in
a separate case in which A.B. was the named victim, Gonzalez had
already pleaded guilty to sexual exploitation of children with a date
range encompassing the one in this case.
2 ¶6 The prosecution elected to try Gonzalez based on six acts
corresponding to videos from the SD card dated August 4, 17, and
28, 2017; and September 19 and 21, 2017.
¶7 In the month before trial, defense counsel filed a request for
notice of and motion to exclude other act evidence under CRE
404(b).
¶8 At a subsequent pretrial hearing, the prosecutor said she
intended to introduce six videos at trial — five exclusively showing
J.B. and one, which would “need to be redacted,” showing J.B. and
A.B. The prosecutor indicated that there was no plan to introduce
any videos showing assaults of A.B. Defense counsel said he still
needed to view the videos.
¶9 At another pretrial hearing the day before trial, the prosecutor
said she intended to introduce the August 7 video showing
Gonzalez’s face just before he lifted the covers off A.B. Defense
counsel argued that the video was inadmissible under CRE 404(b),
“or if it’s not [404B], it is res gestae, which is no longer admissible
pursuant to [Rojas v. People, 2022 CO 8].” The prosecutor argued
that the video didn’t implicate CRE 404(b) because no bad act took
place, seeing as there was no nudity depicted and Gonzalez didn’t
3 touch A.B. The prosecutor also argued that the incident shown in
the video was relevant to proving that Gonzalez was the person in
the other videos. Defense counsel responded that it was “absurd”
for the prosecution to claim that no bad act occurred in the video
when it had used that video as the basis for one of the sexual
exploitation charges involving A.B. that was dismissed on double
jeopardy grounds. The trial court reserved ruling on the issue until
it had viewed the August 7 video.
¶ 10 On the first day of trial, the trial court revisited the issue,
indicating that it had viewed the August 7 video. Defense counsel
renewed his objections, arguing that the video was inadmissible
under CRE 404(b) and didn’t qualify as intrinsic evidence under
Rojas. He reasoned that the video formed the basis for the
dismissed attempted sexual exploitation charge, and the act
depicted was therefore uncharged other act evidence. The
prosecutor maintained that the video didn’t fall under CRE 404(b)
because it didn’t depict a bad act and also argued that the act was
intrinsic evidence under Rojas.
¶ 11 The trial court ruled that the video didn’t implicate CRE 404(b)
because it didn’t depict a bad act, was intrinsic to the charged
4 conduct under Rojas, and was relevant to establish identity. The
court also found that the video was admissible under CRE 401,
402, and 403, noting that “any danger of unfair prejudice is normal
to none, in the sense there are no actions taken by Mr. Gonzalez in
the video.”
¶ 12 During her opening statement, the prosecutor told the jury
that “one of the most important things we’ll show you is that the
defendant himself, in the course of a separate video, enters [J.B.
and A.B.’s bedroom], turns the camera around, and shows his own
face on camera.”
¶ 13 During the trial, the prosecutor moved to admit a frame of
Gonzalez’s face taken from the August 7 video. Defense counsel
objected, arguing that there was “no time frame attached” to the
frame and that it was “cumulative and irrelevant” under CRE 401,
402, and 403. The trial court overruled the objection and admitted
the frame, and it was shown to the jury. J.B.’s aunt testified that
Gonzalez was the man in the frame.
¶ 14 After the prosecutor played the six videos depicting sexual
assaults of J.B. for the jury, she moved to admit the August 7 video.
Over defense counsel’s renewed objection, the trial court admitted
5 the video, and it was played for the jury. A detective on the case
testified that Gonzalez was the man in the video.
¶ 15 The jury was subsequently shown still frames of the hands
depicted in the videos, each taken from the six sexual assault
videos and the August 7 video.
¶ 16 In closing argument, the prosecutor referred to the August 7
video, arguing that it showed Gonzalez “doing what he normally did,
which was walk into the bedroom, move some covers, and then
swab over the camera so we could see it plain as day.”
¶ 17 During deliberations, the jury asked to rewatch the August 7
video twice. During the second viewing, and over defense counsel’s
objection, the jurors were allowed to pause and discuss the video.
¶ 18 The jury found Gonzalez guilty of the charged count of sexual
assault on a child by a person in a position of trust (victim under
fifteen years old) as a part of a pattern of abuse. The jury also
found that Gonzalez had committed all six acts in August and
September 2017 as alleged by the prosecution.
¶ 19 The trial court sentenced Gonzalez to an indeterminate term of
ten years to life in prison plus an indeterminate term of twenty
years to life on parole.
6 II. Discussion
¶ 20 Gonzalez contends that the trial court erroneously admitted
the August 7 video and associated frame of his face because they
constituted extrinsic other act evidence that was inadmissible
under CRE 404(b) and Rojas. We don’t agree.
A. Preservation
¶ 21 The parties agree that Gonzalez preserved his challenge to the
video evidence but dispute the same regarding the frame. The
People assert that, although Gonzalez’s counsel objected to the
frame at trial, counsel did so on different grounds than Gonzalez
raises on appeal, and that we should therefore review for plain
error. See Hagos v. People, 2012 CO 63, ¶ 14 (we review errors that
weren’t preserved by objection for plain error). However, we don’t
need to resolve the preservation issue because we conclude that the
trial court didn’t err by admitting the evidence.
B. Standard of Review
¶ 22 We review a trial court’s evidentiary ruling for an abuse of
discretion. Rojas, ¶ 16. A trial court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, or when it
7 misconstrues or misapplies the law. People v. Trujillo, 2025 COA
22, ¶ 24.
¶ 23 “We can affirm the trial court’s evidentiary ruling on any
ground supported by the record, even if that ground was not
articulated or considered by the trial court.” People v. Brown, 2014
COA 155M-2, ¶ 15.
C. Applicable Law
¶ 24 Under CRE 404(b), evidence of other crimes, wrongs, or acts
isn’t admissible to prove a defendant’s character to show that he
acted in conformity with that character. But such evidence may be
admitted for other purposes, such as to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” CRE 404(b)(2).
¶ 25 In evaluating whether other act evidence implicates CRE
404(b), a trial court must first decide if the evidence is intrinsic or
extrinsic to the charged offense. Rojas, ¶ 52. “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.” Id. Intrinsic acts don’t implicate CRE 404(b)
because they aren’t “other” crimes, wrongs, or acts. Rojas, ¶ 52.
8 Courts should therefore evaluate the admissibility of intrinsic
evidence under CRE 401-403. Rojas, ¶ 52.
¶ 26 Conversely, extrinsic evidence is not directly related to the
crime charged. See People v. Quintana, 882 P.2d 1366, 1372 (Colo.
1994), abrogated on other grounds by, Rojas. Extrinsic evidence
involves conduct independent and different from 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 CRE 404(b) and after an analysis under People
v. Spoto, 795 P.2d 1314 (Colo. 1990). Rojas, ¶ 52. Under Spoto,
evidence of acts that suggest bad character is admissible only if
(1) the evidence relates to a material fact; (2) the evidence is
logically relevant; (3) the logical relevance is independent of the
prohibited intermediate inference that the defendant was acting in
conformity with his bad character; and (4) the probative value of the
evidence isn’t substantially outweighed by the danger of unfair
prejudice. Spoto, 795 P.2d at 1318. But if the extrinsic evidence
doesn’t suggest bad character, CRE 404(b) is inapplicable, and its
admissibility is governed by CRE 401-403. Rojas, ¶ 52.
9 D. Analysis
¶ 27 Gonzalez argues that the August 7 video and associated frame
of his face constituted extrinsic evidence under Rojas because they
involved a separate alleged offense and a different alleged victim.
He also asserts that the trial court erred by failing to conduct CRE
404(b) and Spoto analyses and that the evidence wasn’t admissible
under CRE 404(b) because it (1) suggested a bad character by
showing him “entering a bedroom, lifting the covers, and filming
A.B., including her crotch, while she was sleeping”; (2) allowed the
jury to rely on it for propensity purposes; and (3) depicted the
commission of attempted sexual exploitation of a child. He also
argues that the trial court erred by failing to give a limiting
instruction for this evidence, and that the evidence should have
been excluded based on the prosecution’s failure to provide the
requisite pretrial notice.
¶ 28 We conclude that the evidence was properly admitted because
it was extrinsic evidence that wasn’t barred by CRE 404(b), and the
failure to give a limiting instruction wasn’t obvious error and didn’t
prejudice Gonzalez. We acknowledge that the trial court found that
the evidence didn’t implicate CRE 404(b), and that it didn’t conduct
10 a Spoto inquiry. However, the record allows us to engage in this
analysis. See People v. Cousins, 181 P.3d 365, 370 (Colo. App.
2007) (“A conviction will not be overturned on appeal when the trial
court employed an erroneous standard in analyzing the
admissibility . . . [if the] evidence [was] admissible, and the proper
foundation [was] laid for its admission.”); People v. Martinez, 36
P.3d 154, 158-60 (Colo. App. 2001) (conducting a CRE 404(b)
analysis for the first time on appeal); Brown, ¶ 15 (we can affirm the
trial court’s ruling on any ground supported by the record). We also
note that the court did make findings that addressed three of the
four Spoto factors: (1) the evidence was relevant; (2) it logically
related to the material fact of identity; and (3) the probative value
wasn’t substantially outweighed by the risk of unfair prejudice.
Reviewing the record, we agree with the court’s findings.
1. The Challenged Evidence
¶ 29 The August 7 video is one minute and five seconds long. It
shows Gonzalez as he walks over to J.B. and A.B.’s shared bed,
puts the phone down with the camera facing himself to plug in a
different phone, picks up the phone that is recording and points the
camera at the bed, lifts the covers from A.B., and puts the covers
11 back down. When Gonzalez lifts the covers, A.B. is visible from her
upper torso to her upper thighs. She appears to be wearing a shirt
and shorts or underwear. And the associated still frame taken from
the video is of Gonzalez’s face, part of his unclothed upper torso,
and his hand raised against a blank wall.
2. Extrinsic or Intrinsic Evidence
¶ 30 First, and contrary to the trial court’s finding, we conclude
that this evidence was extrinsic to the charged offense. It didn’t
directly prove the charged offense. That is, evidence that Gonzalez
lifted the covers from A.B. on August 7, 2017, didn’t directly prove
that he sexually assaulted J.B. on August 4, 17, and 28, and
September 19 and 21 of 2017. And the acts shown in the video and
frame didn’t occur “contemporaneously” with the acts supporting
the charged offense, as they occurred on a different day. Nor did
they facilitate the commission of the charged offense. The People
argue that the acts in the video and frame “facilitated the proof of
the charge[d] crime’s commission.” But that isn’t the test. The test
is whether the other acts “facilitated the commission of” the charged
offense, not the proof of it. Rojas, ¶ 52. And in this case, the fact
12 that Gonzalez lifted the covers from A.B. on one day didn’t facilitate
his commission of sexual assaults of J.B. on different days.
3. CRE 404(b) and Spoto
¶ 31 Second, we conclude that the extrinsic evidence arguably
implicated Gonzalez’s bad character because it showed him
entering a bedroom, lifting the covers, and filming the genital area
of a young child while she was sleeping. Therefore, the evidence
was governed by CRE 404(b) and admissible only after passing the
four-prong test outlined in Spoto. See Rojas, ¶ 52.
¶ 32 “The first prong of the Spoto test is the easiest to satisfy.”
Yusem v. People, 210 P.3d 458, 464 (Colo. 2009). A material fact is
one “that is of consequence to the determination of the action.”
CRE 401. “So long as the purposes for which the prior act evidence
is offered are somehow probative of an ultimate fact, the first prong
is satisfied.” Yusem, 210 P.3d at 464. The August 7 video and
associated frame related to at least one material fact: whether
Gonzalez was the perpetrator in the sexual assault videos. See
13 People v. Baker, 178 P.3d 1225, 1231 (Colo. App. 2007) (identity is
a material fact for purposes of a CRE 404(b) analysis).1
¶ 33 Regarding the second Spoto prong, the video and frame were
logically relevant to the material fact of identity because, as a
matter of logic, they had at least some tendency to make it more
probable that Gonzalez was the individual performing the acts in
the sexual assault videos. See Yusem, 210 P.3d at 464-65
(Evidence is logically relevant if it “has any tendency to make the
existence of the material fact more or less probable than without
the evidence.”). The video and frame showed Gonzalez’s face and
hand in the same room where the sexual assaults of J.B. happened.
The video also showed Gonzalez lifting the blanket to record the
child beneath it, as had occurred in the sexual assault videos. And
the evidence depicted events occurring at night, like the sexual
1 The video and frame may also have been relevant to the material
issue of intent in that they show conduct different than that depicted in the videos of J.B., indicating an intent to act differently with respect to J.B. See People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (intent is a material fact that must be proven when the defendant denies having committed sexual assault on a child while in a position of trust).
14 assault videos. The August 7 video was also found on the same SD
card as the sexual assault videos and other pictures of Gonzalez.
¶ 34 As to the third Spoto prong, the evidence was logically
relevant, independent of any impermissible inference of bad
character. “The third prong of the Spoto test does not demand the
absence of the inference but merely requires that the proffered
evidence be logically relevant independent of that inference.” People
v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994). The chain of logical
inferences from the video and frame evidence flows not from
Gonzalez’s character but from the similarities between the August 7
video and the sexual assault videos and the differences between the
August 7 video and the sexual assault videos that tie Gonzalez to
the sexual assault videos (including that the August 7 video shows
Gonzalez’s face while the others don’t). See People v. Morales, 2012
COA 2, ¶ 31 (The requirement that the evidence be logically relevant
independent of a propensity inference is satisfied “where there is
‘similarity’ between the charged and uncharged acts, showing a
‘specific tendency’ on the defendant’s part.” (quoting People v.
McBride, 228 P.3d 216, 227 (Colo. App. 2009))).
15 ¶ 35 Finally, with regard to the fourth Spoto prong, we conclude
that the probative value of the August 7 video and frame wasn’t
substantially outweighed by the danger of unfair prejudice.
Because this prong favors admissibility, we must afford the
evidence the maximum probative value attributable by a reasonable
fact finder and the minimum unfair prejudice to be reasonably
expected. Yusem, 210 P.3d at 467. “[E]vidence is unfairly
prejudicial only if it has an ‘undue tendency to suggest a decision
on an improper basis, commonly but not necessarily an emotional
one, such as sympathy, hatred, contempt, retribution, or horror.’”
People v. Allgier, 2018 COA 122, ¶ 31 (quoting People v. Dist. Ct.,
785 P.2d 141, 147 (Colo. 1990)).
¶ 36 Because the central issue in the case was whether Gonzalez
was the perpetrator in the sexual assault videos, the August 7 video
and associated frame were highly probative. See People v.
Denhartog, 2019 COA 23, ¶ 47 (Where the “central dispute” in the
case was whether the defendant acted with the requisite intent, the
prior act evidence, “which was directly relevant to the dispute, was
highly probative.”). By contrast, the evidence had minimal
prejudicial impact because no conduct depicted in the video or
16 frame was by itself illegal, and the evidence “conveyed relatively
mundane information when compared with the graphic evidence
otherwise admitted at trial.” People v. Dean, 2012 COA 106, ¶ 46,
aff’d, 2016 CO 14; see also People v. Rath, 44 P.3d 1033, 1043
(Colo. 2002) (the introduction of evidence of prior incidents didn’t
violate CRE 403 because those incidents were “less serious,
heinous, or egregious, than the three sexual assaults presented to
the jury and were less likely to have an inflammatory effect”). While
all relevant evidence is prejudicial in a broad sense, the evidence
didn’t create any unfair prejudice. See People v. Griffiths, 251 P.3d
462, 466-67 (Colo. App. 2010) (“Relevant evidence is inherently
prejudicial; but it is only unfair prejudice, substantially outweighing
probative value, which permits exclusion of relevant matter under
Rule 403.” (quoting Masters v. People, 58 P.3d 979, 1001 (Colo.
2002))).
¶ 37 Gonzalez argues that the prejudicial impact of this evidence
“was grossly compounded by the absence of a limiting instruction.”
Because his attorney didn’t ask the trial court to give a limiting
instruction, we review his assertion for plain error. People v. Griffin,
17 224 P.3d 292, 298 (Colo. App. 2009).2 “We will reverse only if
[Gonzalez] shows that the court committed an obvious and
substantial error that undermined the fundamental fairness of the
trial so as to cast serious doubt on the reliability of the judgment of
conviction.” Id.
¶ 38 We conclude that any alleged error in this context wasn’t
obvious because, “absent a special statutory requirement, the
supreme court has consistently held that trial courts have no duty
to give limiting instructions sua sponte.” Id. Rather, the onus is on
the parties to request a limiting instruction. See Rojas, ¶ 27 (“If a
court determines the evidence is admissible [under Spoto], the court
must also, upon request, contemporaneously instruct the jurors of
the limited purpose for which the evidence may be considered.”)
(emphasis added). Gonzalez acknowledges this but asserts that his
2 Though Gonzalez argues that his trial attorney didn’t have any
reason to request a limiting instructing once the court ruled that evidence wasn’t subject to CRE 404(b), limiting instructions may be appropriate whenever, as in this case, evidence is admitted for a particular purpose. See, e.g., Vialpando v. People, 727 P.2d 1090, 1096 (Colo. 1986); People v. Schlehuber, 2025 COA 50, ¶ 40; People v. Brown, 2022 COA 19, ¶¶ 60-62. And we note that, when counsel argued that the evidence was inadmissible under CRE 404(b), he didn’t argue in the alternative that, if the court found the evidence admissible under CRE 404(b), it should give a limiting instruction.
18 counsel didn’t request a limiting instruction because “there was no
need, much less a basis, to even discuss a limiting instruction” due
to the trial court’s ruling that the evidence didn’t implicate CRE
404(b). Therefore, he claims that such a request would have been
“futile.” See People v. Diefenderfer, 784 P.2d 741, 750 (Colo. 1989)
(“The law does not require a futile act.”). But even if not subject to
CRE 404(b), the evidence could be subject to a limiting instruction.
¶ 39 Nonetheless, we conclude that the absence of a limiting
instruction didn’t “undermine[] the fundamental fairness of the trial
so as to cast serious doubt on the reliability of the judgment of
conviction.” Griffin, 224 P.3d at 298. The August 7 video and
associated frame were “so obviously relevant” for the legitimate
purpose of proving that Gonzalez was the perpetrator in the sexual
assault videos that there was “little danger that the jury relied on
the less potent, prohibited inference that [Gonzalez] had acted in
conformity with [his] poor character generally.” Id. at 300.
¶ 40 Because the August 7 video and associated frame meet the
foundational requirements of CRE 404(b) and Spoto, we conclude
that the trial court didn’t err by admitting this evidence.
19 4. Notice
¶ 41 Finally, citing CRE 404(b)(3) and section 16-10-301(4), C.R.S.
2025, Gonzalez contends that “the other act evidence should have
been excluded based on the Prosecution’s failure to provide the
requisite pre-trial notice.” We first note that, although Gonzalez
filed a pretrial notice of and motion to exclude other act evidence
under CRE 404(b), his attorney didn’t object to the sufficiency of
notice when the prosecutor first said she intended to introduce the
August 7 video. The issue is therefore unpreserved, and we would
normally review for plain error. See Hagos,¶ 14. But Gonzalez
doesn’t develop the argument beyond a single sentence or explain
why the alleged lack of notice prejudiced him. “In light of the . . .
cursory[] and undeveloped manner in which [Gonzalez] presents
this . . . assertion, we decline to address it.” People v. Gingles, 2014
COA 163, ¶ 29; see also People v. Simpson, 93 P.3d 551, 555 (Colo.
App. 2003) (“We decline to consider a bald legal proposition
presented without argument or development . . . .”)
III. Disposition
¶ 42 The judgment is affirmed.
JUDGE GROVE and JUDGE SCHUTZ concur.