Kervin Rogers: Colorado Court of Appeals Ruling

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11CA1461 Peo v Rogers 01-21-2016
COLORADO COURT OF APPEALS
Court of Appeals No. 11CA1461
City and County of Denver District Court No. 09CR6160
Honorable Kenneth M. Laff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kervin A. Rogers,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE BERGER
Richman and Dunn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced January 21, 2016
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

Defendant, Kervin A. Rogers, appeals the judgment of
conviction entered on jury verdicts finding him guilty of three
counts of first degree murder. Rogers argues that the trial court
erred in (1) denying his motion to suppress statements that he
made to police officers on the basis that the officers did not
scrupulously honor his right to remain silent; (2) admitting video
recordings of his police interviews in which the interviewing officers
opined about his credibility; and (3) denying his motion to sever the
counts and admitting other acts and res gestae evidence. We
address and reject all three contentions and affirm.
I. Facts and Procedural History
During a four-week period in 2009, the bodies of three murder
victims were found in different alleys within a three-mile radius in
Denver. Each victim had been shot twice in the head, and 9 mm
shell casings were recovered from each crime scene. The
investigation led police to suspect that Rogers was involved, and he
was arrested and charged with committing the murders.
A single trial was held on the three murder charges. The
prosecution’s theory at trial was that Rogers was a drug dealer, the
victims were addicts who sold crack cocaine for him, and he killed
1

them because they each owed him money. The prosecution
presented numerous witnesses to support this theory.
Other evidence at trial showed that the same gun was used in
all three murders; the gun was found in Rogers’ girlfriend’s house
with his fingerprints on the magazine; and, earlier in 2009, the
same gun was used in an unrelated shooting in Aurora in which
witnesses had identified Rogers as the shooter. A box of 9 mm
ammunition of the same type as the casings recovered at the
murder scenes was found during a search of Rogers’ apartment.
Additionally, cell phone location records obtained from Rogers’
cellular service provider indicated that he had made or received
calls at the approximate time of the victims’ deaths in the areas
where their bodies were found.
Evidence relating to the individual victims (A.F.-C., C.K., and
R.C. [a.k.a. S.L.]) showed that Rogers’ DNA matched sperm found in
C.K.’s mouth during the autopsy; witnesses had seen Rogers
assaulting and yelling at A.F.-C. the night she died; and
surveillance camera footage from the night R.C. died showed a car
near where his body was found that was similar in appearance to
Rogers’ girlfriend’s car, which he sometimes drove.
2

A jury found Rogers guilty of three counts of first degree
murder (after deliberation), and the trial court sentenced him to
three consecutive sentences of life in prison without the possibility
of parole.
II. Police Interviews
After Rogers was arrested, he was interviewed by police twice
on December 14 through December 15, 2009 (Interview 1 and
Interview 2), and twice on December 23 (Interview 3 and Interview
4). Rogers moved to suppress all of his statements to the police. In
response, the prosecution stated that it intended to introduce at
trial video recordings only of Interview 1 and Interview 3. The trial
court granted Rogers’ motion to suppress only as to the last fifteen
minutes of the recording of Interview 1; the remainder of Interview 1
was introduced at trial and played for the jury, as was Interview 3.
Rogers now argues that the trial court erred (1) in denying his
motion to suppress the statements he made during Interview 3
because he contends that he had invoked his right to remain silent
during Interview 1 and the police failed to scrupulously honor his
right to silence; and (2) in admitting the recordings of Interview 1

3

and Interview 3 without redacting statements by the interviewing
police officers about Rogers’ credibility. We reject both arguments.
A. Additional Facts
After Rogers was arrested on the evening of December 14
under an arrest warrant for the murder of A.F.-C., Denver Police
Department Detective Mark Crider interviewed Rogers for about an
hour and a half regarding that murder. At the beginning of the
interview, Detective Crider advised Rogers of his Miranda rights,
and Rogers signed a form waiving his rights and said that he was
willing to talk with the detective.
During the interview, Rogers admitted knowing A.F.-C., but he
claimed that she was just an acquaintance that he had met two
weeks earlier. He denied selling drugs and denied that A.F.-C. sold
drugs for him. He said that he had been in Colorado Springs the
previous weekend (when A.F.-C. was killed), but he did not give
Detective Crider any information that would allow the police to
confirm his alibi. He also told Detective Crider that he had been
homeless since 2007, and that he had not been driving his
girlfriend’s car immediately prior to being arrested.

4

Detective Crider told Rogers that people had told the police
that they saw Rogers with A.F.-C. over the weekend, and police
officers had seen him driving his girlfriend’s car before he was
arrested. Detective Crider also said that it was surprising that
Rogers was homeless because his appearance did not give that
impression. Rogers maintained his denials.
Detective Crider asked Rogers why he was lying about driving
his girlfriend’s car, and what else he had lied about. The detective
then said, “If you’re going to lie about that, it doesn’t look good for
you. Why are you lying about that? And then, are you lying about
[A.F.-C.]?” Detective Crider also accused Rogers of lying about
being homeless, going to shelters to eat, and selling drugs, and told
him to “just be honest” about whether he was with A.F.-C. and
whether she was selling drugs for him. At several other points
during the interview, Detective Crider told Rogers to “just be
honest” or “tell the truth” about being in Colorado Springs, and said
that he did not believe him.
About an hour and fifteen minutes into the interview, at
around 11:59 p.m., Detective Crider asked Rogers whether he
wanted “to continue talking,” and it sounds like Rogers said that he
5

did not know (it is difficult to discern Rogers’ response on the
recording). The detective then said, “Okay, so you want to stop this
then?” and Rogers answered, “Whenever you’re ready, yeah,” or
“whenever you’re ready, yo.”1 Detective Crider responded, “Well, it’s
not me. It’s you, okay.”
A short time later, Detective Crider said, “I obviously have
more questions, but it’s up to you if you want to keep talking.”
Rogers answered, “I’m listening, talk, man.” The interview
continued for about fifteen more minutes until Rogers said that he
was “done,” at which point Detective Crider ended the interview.
Rogers remained in the interview room after Detective Crider left.
About twenty-five minutes after the conclusion of Interview 1,
at approximately 12:40 a.m. on December 15, Aurora Police
Department Detective Matt Fyles entered the interview room and
told Rogers that he wanted to talk to him about an unrelated
Rogers’ motion to suppress states that he said “that would be
right” in response to Detective Crider’s question whether he wanted
to “stop this.” Based on the trial court’s statements during pretrial
hearings, it appears that the court looked at a transcript of the
interview, which is not part of the record on appeal, that
transcribed Rogers’ response as “that be — that be right, yeah.”
However, after repeated viewings of the interview, we agree with the
parties on appeal that Rogers said, “whenever you’re ready,” not
“that would be right” or “that be right.”
1

6

Aurora case (a different case than the Aurora shooting mentioned
above). Rogers said that he was “done” and “tired,” and Detective
Fyles left the room. The recording of Interview 2 was not introduced
at trial.
On December 23, Rogers, who remained in custody since his
arrest on December 14, was interviewed by Denver Police Detectives
Randy Stegman and Mike Martinez. The interview began, at around
2:40 p.m., with Detective Martinez informing Rogers that they
wanted to talk to him about another murder. Rogers was then
advised of his Miranda rights, and he signed a waiver form
indicating that he knew his rights and voluntarily agreed to speak
with the detectives.
The detectives showed Rogers a photograph of C.K. and asked
him whether he knew her. Rogers said that he did not. After
several questions about whether Rogers was familiar with the area
where C.K.’s body was found, the detectives showed Rogers a police
“log sheet” from three days before C.K. was killed. The log sheet
indicated that that day police officers had stopped the car Rogers
was driving, and C.K. was with him. Rogers denied that she was
with him.
7

The detectives then told Rogers that his DNA matched semen
found in C.K.’s mouth. Rogers again denied knowing C.K. and said
that he had never seen her before. One of the detectives responded
that that was “really hard to believe.”
The detectives also implied that Rogers was not being truthful
in response to questions about an apartment that they believed was
his. The detectives told Rogers that his answers about the
apartment were relevant because they needed to determine whether
he was telling them the truth. They said that if he was not being
truthful with them about anything, how could he expect them to
believe him when he said that he did not know C.K.
One of the detectives made a similar statement in response to
Rogers’ repeated assertions that he did not know why his semen
was in C.K.’s mouth. The detective said that “science doesn’t lie,”
and “there is only one way [your] semen could have ended up in her
mouth. So for you to say I don’t know how or I don’t know why, it’s
not a legitimate answer, it’s not the truth.” Other statements by the
detectives included telling Rogers, in response to his answers about
various matters, that they just wanted him “to be truthful.”

8

Throughout the rest of the interview, Rogers repeated that he
did not know C.K. or anything about what had happened to her. He
also stated several times, without any prompting by the detectives,
that he did not know anything about what had happened to A.F.-C.
The detectives responded that their concern was this case (C.K.’s
murder), not A.F.-C.’s murder. The detectives did show him
photographs of two other people (one of whom was the third victim
in this case, R.C.), but not one of A.F.-C.
At approximately 3:24 p.m., Rogers said that he was “tired”
and had “nothing to say,” and the detectives concluded the
interview. One of them told him to “sit tight,” and Rogers remained
in the room after the detectives left.
About five minutes after the conclusion of Interview 3, Denver
Police Detective Troy Bisgard and Detective Fyles entered the
interview room and asked Rogers if he wanted to talk to them about
a few cases. They informed him of his Miranda rights, and he
signed a waiver form. They then asked Rogers questions about
R.C.’s murder; he denied involvement.
At some point, in response to a statement by Rogers, one of
the detectives said that they were there because of “murders, that’s
9

what I’m talking about, that’s what everyone’s talking about.” The
detectives also asked him why shell casings from the murder
“scenes” matched ammunition found in Rogers’ apartment.
After about seventeen minutes, Rogers said he had “nothing to
say,” and the detectives left. The recording of Interview 4 was not
introduced at trial.
B. Right to Remain Silent
Both the Fifth Amendment to the United States Constitution
and article II, section 18 of the Colorado Constitution confer on
criminal defendants a constitutional privilege against selfincrimination. People v. Briggs, 709 P.2d 911, 915 (Colo. 1985).
“[T]o permit a full opportunity to exercise the privilege against selfincrimination [during custodial police interrogation], the accused
must be adequately and effectively apprised of his rights and the
exercise of those rights must be fully honored.” Miranda v. Arizona,
384 U.S. 436, 467 (1966). Thus, before interrogation begins, a
suspect “must . . . be informed in clear and unequivocal terms that
he has the right to remain silent.” Id. at 467-68.
If the suspect later “indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
10

interrogation must cease.” Id. at 473-74. “Once a criminal suspect
invokes his right to remain silent, the police must ‘scrupulously
honor’ the assertion of this right . . . . ‘The critical safeguard . . . is
a person’s “right to cut off questioning.”’” People v. Arroya, 988
P.2d 1124, 1130 (Colo. 1999) (quoting Michigan v. Mosley, 423 U.S.
96, 103-04 (1975)).
“However, Miranda does not require the police to accept as
conclusive any statement, no matter how ambiguous, as a sign that
the suspect desires to cut off questioning.” People v. Gray, 975 P.2d
1124, 1130 (Colo. App. 1997). Rather, “a suspect must clearly
articulate the desire to remain silent so that a reasonable police
officer in the circumstances would understand the suspect’s words
and conduct to mean that the suspect is asserting [his] Miranda
right to cut off questioning.” Arroya, 988 P.2d at 1129-30.
A suspect is not required to use special or ritualistic phrases
to invoke the right to cut off questioning. Id. at 1132. To determine
whether a suspect’s statement is a clear assertion of the right, a
court must consider the totality of the circumstances surrounding
it. Id. Factors the court should consider include:

11

[t]he words spoken by the [suspect] and the
interrogating officer, the officer’s response to
the suspect’s words, the speech patterns of the
suspect, the content of the interrogation, the
demeanor and tone of the interrogating officer,
the suspect’s behavior during questioning, the
point at which the suspect invoked the right to
remain silent, and who was present during the
interrogation.
Id. The above factors are not exhaustive and no single factor is
controlling. Id. at 1133.
If a suspect clearly articulates a desire to remain silent, “the
admissibility of statements obtained after [his invocation] . . .
depends under Miranda on whether his ‘right to cut off questioning’
was ‘scrupulously honored.’” Mosley, 423 U.S. at 104. Thus, “once
the right to remain silent is invoked . . . the police may resume
questioning [the suspect] only if the police act under the
circumstances to respect fully the assertion by the suspect of this
right.” Arroya, 988 P.2d at 1134-35.
Colorado courts consider four factors, derived from Mosley, in
determining whether the resumption of police questioning
“scrupulously honored” a suspect’s right to cut off questioning:
(1) whether the police immediately ceased the
initial interrogation upon the suspect’s
request; (2) whether the police resumed
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questioning only after the passage of a
significant period of time; (3) whether the
police gave a fresh set of Miranda warnings
prior to the second interrogation; and (4)
whether the second interrogation was
restricted to a crime that was not the subject
of the first interrogation.
People v. Bonilla-Barraza, 209 P.3d 1090, 1095 (Colo. 2009). None
of these factors is determinative, id., and the list is not exhaustive;
rather, these factors “are to be considered along with any other
factor bearing on whether the police fully respected the suspect’s
right to cut off questioning,” People v. Quezada, 731 P.2d 730, 734
(Colo. 1987).
The trial court determined that Rogers unequivocally invoked
his right to remain silent at 11:59 p.m. during Interview 1, and it
suppressed Rogers’ statements from Interview 1 made after that
point. The recording of Interview 1 introduced at trial and played
for the jury thus ended after Detective Crider asked Rogers if he
wanted to “stop this,” and Rogers answered, “Whenever you’re
ready.” However, the court determined that the entirety of Interview
3 nevertheless was admissible because, under the circumstances,
Mosley permitted the resumption of police questioning.

13

“Our review of a suppression order raises a mixed question of
law and fact.” People v. Lynn, 2012 CO 45, ¶ 5. We defer to the
trial court’s findings of historical fact if they are supported by the
record. People v. Redgebol, 184 P.3d 86, 93 (Colo. 2008). We
review the court’s legal determinations de novo. Lynn, ¶ 5.
Although our analysis differs in one respect, we agree with the
trial court that the police did not violate Rogers’ right to remain
silent by conducting Interview 3. Application of all four Mosley
factors supports the conclusion that resumption of questioning was
consistent with the police fully respecting Rogers’ right to cut off
questioning.
Regarding the first Mosley factor, whether the police
immediately ceased interrogation upon Rogers’ request to cut off
questioning, we disagree with the trial court that Rogers
unequivocally invoked his right to remain silent at 11:59 p.m. on
December 14 during Interview 1.2 When reviewing video-recorded

The admissibility of the portion of Interview 1 that occurred after
11:59 p.m. is not at issue because the People did not cross-appeal
the trial court’s order suppressing that portion of the interview.
However, whether Rogers invoked his right to remain silent at that
point is nonetheless before us on his claim that the police did not
scrupulously honor his right to cut off questioning.

2

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statements, if “there are no relevant disputed facts outside of the
recording, we are in a position similar to that of the trial court.”
People v. Lucas, 232 P.3d 155, 159 (Colo. App. 2009). Thus, we
need not defer to the trial court’s factual findings regarding the
statements and may draw our own conclusions from our
independent review of the recording. See People v. Al-Yousif, 49
P.3d 1165, 1171 (Colo. 2002); People v. Cisneros, 2014 COA 49,
¶ 56.
The trial court apparently believed that Rogers answered “that
be right” when Detective Crider asked him if he wanted to stop, but
after repeated viewings of the recording, we conclude that those
words were not uttered. Rather, we agree with the parties on
appeal that Rogers answered, “whenever you’re ready.” This
response also makes more sense than “that be right” in the context
of the conversation, as Detective Crider’s next words to Rogers were
“well it’s not me, it’s you.” Additionally, the fact that it is difficult to
understand Rogers’ response further suggests that a reasonable
police officer in Detective Crider’s position most likely would not
have understood Rogers’ statement as a clear assertion of his right
to cut off questioning. See Arroya, 988 P.2d at 1129-30.
15

Fifteen minutes later, when Rogers did clearly articulate his
desire to remain silent by saying he was “done,” Detective Crider
immediately ended the interview. Although Detective Fyles
expressed an intention to interview Rogers twenty-five minutes later
about another crime, no questioning actually occurred and
Detective Fyles did not in any way try to persuade Rogers to talk to
him. Interview 2 thus does not show that the police “persist[ed] in
repeated efforts to wear down [Rogers’] resistance and make him
change his mind” about cutting off questioning. See Mosley, 423
U.S. at 106.
As to the second Mosley factor, whether the police resumed
questioning only after the passage of a significant period of time,
“[a]n interval of twenty-four hours is generally considered
significant under Mosley.” Bonilla-Barraza, 209 P.3d at 1096. In
Mosley, an interval of several hours was considered “the passage of
a significant period of time,” as was a day and half in BonillaBarraza. Mosley, 423 U.S. at 104, 106; Bonilla-Barraza, 209 P.3d
at 1097. Consequently, the time period here — over a week —
establishes that Rogers had “a full and fair opportunity to
intelligently assess [his] own interests in either maintaining
16

continued silence or making a statement.” See Quezada, 731 P.2d
at 735.
Rogers argues on appeal that other events that occurred
during this time period are relevant in determining whether the
police scrupulously honored his decision to cut off questioning.
Rogers does not explain how these circumstances should affect our
analysis, and therefore we, with one exception, do not further
address them. See People v. Durapau, 280 P.3d 42, 49 (Colo. App.
2011) (declining to consider arguments presented as conclusory
statements with no analysis or development).
We disagree with Rogers’ assertion that it is significant that, a
few days after his arrest, his appointed counsel faxed a letter to the
Denver Police Department stating that Rogers did not wish to speak
to the police about “this pending investigation or any other matter.”
“[T]he [United States] Supreme Court has never held that a person
can invoke his Miranda rights anticipatorily, in a context other than
custodial interrogation.” People v. Vasquez, 155 P.3d 588, 592
(Colo. App. 2006). Moreover, “a person’s Fifth Amendment right to
remain silent is a personal one; it cannot be vicariously asserted by
counsel.” People v. Avila, 89 Cal. Rptr. 320, 322 (Cal. Ct. App.
17

1999); see also Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986)
(“[T]he privilege against compulsory self-incrimination is . . . a
personal one that can only be invoked by the individual whose
testimony is being compelled.”).
Regarding the third and fourth Mosley factors, the police gave
Rogers a fresh set of Miranda warnings before Interview 3, and they
restricted the subject of Interview 3 to the murder of C.K. Although
Rogers mentioned A.F.-C. (the subject of Interview 1) several times,
the detectives responded that they were there to discuss C.K., not
A.F.-C. The circumstances of Interview 3 therefore demonstrated
that the police intended to honor Rogers’ earlier decision to refuse
to continue answering questions about A.F.-C.’s murder. See
Mosley, 423 U.S. at 105.
Accordingly, Interview 3 was consistent with the police
scrupulously honoring Rogers’ right to remain silent, and the trial
court did not err in denying his motion to suppress the statements
he made during that interview.
C. Officers’ Statements about Rogers’ Credibility
Although CRE 402 provides that relevant evidence is generally
admissible, specific evidentiary rules limit the admissibility of
18

certain types of evidence. CRE 608 allows a party to present
evidence supporting or attacking a witness’ credibility, but such
evidence “may refer only to character for truthfulness or
untruthfulness.” “CRE 608 evidence is not permitted to establish
whether a witness testified truthfully on the witness stand or
whether he or she was truthful on a particular occasion.” Liggett v.
People, 135 P.3d 725, 731 (Colo. 2006). Thus, CRE 608 precludes
testimony that a criminal defendant was being truthful or
untruthful on a particular occasion. Id.
Rogers argues that the statements made by Detectives Crider,
Martinez, and Stegman during Interview 1 and Interview 3, in which
they repeatedly said that they did not believe him and accused him
of lying, fall under this rule and therefore the admission of the
recordings of those interviews without redacting the statements was
error. The trial court denied Rogers’ request to redact the
statements, concluding that the statements were not comments on
testimony but rather constituted an interrogation technique, and
that also they were necessary to put the denials Rogers made
during the interviews in context.

19

We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). A trial
court abuses its discretion if its ruling was manifestly arbitrary,
unreasonable, or unfair, id., or if it misconstrued or misapplied the
law, People v. Glover, 2015 COA 16, ¶ 10.
We conclude that the officers’ statements were admissible
under Davis v. People, 2013 CO 57. Davis held that law
enforcement officers may testify about their perception of a witness’
credibility during an investigative interview if the testimony is
offered to provide context for the detectives’ interrogation tactics
and investigative decisions. Id. at ¶ 1.
In Davis, two detectives testified about their interviews with
several witnesses, explaining that they used certain investigative
techniques during the interviews because they did not believe the
interviewee was telling the truth (or, conversely, that they made
certain investigative decisions because they believed that the
interviewee was telling the truth). Id. at ¶¶ 4-9. The supreme court
held that case law prohibiting comments by one witness about
another witness’ truthfulness was inapplicable because the

20

detectives’ testimony was not offered for the purpose of commenting
on the witnesses’ credibility. Id. at ¶ 17.
The supreme court explained that the testimony “referred not
to the credibility of the witnesses’ in-court testimony, which
determination undoubtedly falls within the jury’s purview, but
rather to the detectives’ assessments of the interviewees’ credibility
during the interviews conducted prior to trial.” Id. at ¶ 20. As
such, it was offered to explain the detectives’ investigative decisions
and to provide context for the jury to better understand the
detectives’ witness interviews and the scope of their investigation.
Id. at ¶ 21.
If in-court testimony by police officers regarding their belief
that a witness was not truthful during an interview is not improper
if offered to provide context for the detectives’ interrogation tactics
and investigative decisions, it necessarily follows that similar
statements by police officers made during the interrogation itself are
admissible for the same purpose.
Rogers recognizes the significance of Davis, but he argues that
it was wrongly decided. However, we are bound by supreme court

21

precedent, People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App.
2010), and so we must follow Davis.
Rogers also argues that Davis is distinguishable because the
detectives in this case did not testify that the statements they made
during the interviews were an interviewing technique. We disagree.
Like in Davis, the statements at issue were not offered for the
purpose of giving opinion testimony on Rogers’ credibility at trial,
see Davis, ¶ 17, but rather to provide context for his answers to the
detectives’ questions during the interviews, see id. at ¶ 21. Davis
thus permitted their admission.
Accordingly, the trial court did not abuse its discretion in
admitting the statements the detectives made about Rogers’
credibility during Interview 1 and Interview 3.
III. Motion to Sever and Other Acts Evidence
Rogers argues that the trial court erred in (1) denying his
motion to sever the three counts because he contends that evidence
of each offense was not admissible regarding the other two offenses;
and (2) admitting other acts and res gestae evidence on his drug
dealing, his assaults and threats against and search for the victims,

22

and the unrelated shooting in Aurora in which he was identified as
the shooter. We reject these arguments.
A. Law
Two or more offenses charged in a separate count for each
offense may be tried together if the offenses “are of the same or
similar character or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or
plan.” Crim. P. 8(a)(2); Crim. P. 14. However, “[i]f it appears that a
defendant . . . is prejudiced by a joinder of offenses . . . , the court
may order an election or separate trial of counts . . . .” Crim. P. 14.
The trial court has discretion whether to grant a motion to sever,
and we will not overturn its ruling absent an abuse of discretion.
People v. Pasillas-Sanchez, 214 P.3d 520, 530 (Colo. App. 2009).
“An abuse of discretion occurs when (1) the joinder caused
actual prejudice to the defendant . . . , and (2) the trier of fact was
not able to separate the facts and legal principles applicable to each
offense.” People v. Curtis, 2014 COA 100, ¶ 15 (quoting PasillasSanchez, 214 P.3d at 530). “[T]he requisite unfair prejudice to a
defendant [from joinder] is not shown where the evidence of each
[offense] would be admissible in separate trials to show intent,
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common scheme, plan, design, . . . modus operandi,” or for other
permissible purposes. People v. Early, 692 P.2d 1116, 1119 (Colo.
App. 1984); see also People v. Gregg, 298 P.3d 983, 986 (Colo. App.
2011); People v. Owens, 97 P.3d 227, 232 (Colo. App. 2004); People
v. Gross, 39 P.3d 1279, 1282 (Colo. App. 2001).
CRE 404(b) generally governs evidence of acts by a defendant
that are extrinsic to the events charged. See People v. Cooper, 950
P.2d 620, 624 (Colo. App. 1997), rev’d on other grounds, 973 P.2d
1234 (Colo. 1999). CRE 404(b) prohibits the admission of
“[e]vidence of other crimes, wrongs, or acts . . . to prove the
character of a person in order to show that he acted in conformity
therewith.” Other acts evidence therefore “is inadmissible if [its]
logical relevance . . . depends upon an inference that a person who
has engaged in such misconduct has a bad character and the
further inference that the defendant therefore engaged in the
wrongful conduct at issue.” People v. Spoto, 795 P.2d 1314, 1318
(Colo. 1990). However, such evidence may be admissible if used for
purposes independent of an inference of bad character, such as to
show “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” CRE 404(b); see also
24

Yusem v. People, 210 P.3d 458, 463 (Colo. 2009); Gross, 39 P.3d at
1282.
The Colorado Supreme Court has prescribed a four-part
analysis to determine whether evidence of other acts is admissible
under CRE 404(b). Spoto, 795 P.2d at 1318; see also Kaufman v.
People, 202 P.3d 542, 552 (Colo. 2009). To be admissible under
CRE 404(b), (1) other acts evidence must relate to a material fact,
that is, a fact that is of consequence to the determination of the
action; (2) it must be logically relevant, meaning it has any tendency
to make the existence of the material fact more probable or less
probable than it would be without the evidence; (3) the logical
relevance must be independent of the prohibited intermediate
inference that the defendant committed the crime charged because
of the likelihood that he acted in conformity with his bad character;
and (4) the probative value of the evidence must substantially
outweigh the danger of unfair prejudice. Yusem, 210 P.3d at 463
(citing Spoto, 795 P.2d at 1318; CRE 401, CRE 403).
Regarding the fourth prong, a reviewing court “must assume
the maximum probative value a reasonable fact finder might give
the evidence and the minimum unfair prejudice to be reasonably
25

expected from its introduction.” People v. Larson, 97 P.3d 246, 249
(Colo. App. 2004).
B. Application
1. Motion to Sever
The trial court denied Rogers’ motion to sever, concluding that
evidence of each murder was proper CRE 404(b) evidence regarding
the other murders. The court emphasized that the evidence of each
murder was relevant to show a common scheme (and that Rogers
shot and killed one victim to further his drug business made it
more likely he shot the other victims for the same reason) and to
show motive and deliberation. The court explained that the three
murders were remarkably similar and suggested that when Rogers
was owed a drug debt, he killed the debtor. Use of the same gun
was also relevant to identity. Additionally, the court relied on the
doctrine of chances, described in People v. Everett, 250 P.3d 649,
656 (Colo. App. 2010): “unusual and abnormal events are unlikely
to recur by chance.” The trial court stated that the chance that
three people whom Rogers knew and who owed him money were
randomly shot with a gun tied to Rogers was extremely small if
Rogers was not the perpetrator.
26

Based on this analysis, the court concluded that the evidence
of each murder was relevant independent of the prohibited
propensity inference, the probative value of tying the three incidents
together was great, and the evidence of each murder was not
unduly or unfairly prejudicial because it did not reveal a character
trait that would not be revealed in any of the cases tried separately.
We agree with the trial court that Rogers was not entitled to
severance of the three murder charges. The three charges could be
joined together under Crim. P. 8(a)(2) because they were “of the
same or similar character.” And, because evidence of each murder
would have been admissible in separate trials, Rogers cannot
establish that he was prejudiced by the court’s denial of his motion
to sever. See Gross, 39 P.3d at 1282.
Rogers “used a common scheme to commit highly similar
crimes” and “evidence of each incident was relevant to prove his
intent and motive to commit” the crimes. Id. The murders took
place in the same general area within four weeks of each other,
each victim was shot twice in the head, and 9 mm shell casings
were found at each crime scene. There was evidence that Rogers
knew each of the victims, they sold crack for him, and they owed
27

him money. Rogers also was identified in all three incidents
because of the weapon used and through evidence relating to the
individual victims. His sperm was found in C.K.’s mouth, witnesses
saw him assault and yell at A.F.-K. the night she died, and a car he
drove matched the appearance of a car seen in surveillance video at
the approximate time and place of R.C.’s death.
Therefore, evidence of each murder was admissible to show
Rogers’ identity, motive, and intent in committing all three crimes,
see id., as well as to show common scheme, plan, design, or modus
operandi, see People v. Taylor, 804 P.2d 196, 202 (Colo. App. 1990).
The evidence of each offense thus related to a material fact, and the
evidence was logically relevant because it made it more likely than
not that he committed all three crimes. See Curtis, ¶ 18. The
relevance of the evidence was independent of the prohibited
intermediate inference that Rogers committed the crime charged
because of his bad character; rather, it was Rogers’ “tendency to
commit an act in a particular way that [was] relevant, not [his]
general character.” People v. Delgado, 890 P.2d 141, 144 (Colo.
App. 1994).

28

We also agree with the trial court that the probative value of
the evidence substantially outweighed the danger of unfair
prejudice: the striking similarities in both the commission of the
acts and Rogers’ relationship to each victim has obvious probative
value. The same facts also reduced any tendency of the evidence to
encourage the jury to make a decision on an improper basis. See
People v. Cousins, 181 P.3d 365, 369, 372 (Colo. App. 2007)
(defining “unfair prejudice”).
Accordingly, the trial court did not abuse its discretion in
denying Rogers’ motion to sever.
2. Other Acts and Res Gestae Evidence
a. Additional Facts
Most of the other acts and res gestae evidence admitted at trial
that Rogers challenges on appeal relates to evidence of his drug
dealing and interactions with the victims.
Witnesses testified that during the relevant time period in
2009, Rogers was a drug dealer and the three victims were addicts
who owed him money. Witness testimony further established that
A.F.-C. and C.K. sold drugs for Rogers in exchange for him allowing
them to keep for their own use some of the crack cocaine he gave
29

them to sell. Evidence was also introduced that police found a bag
of crack cocaine in Rogers’ apartment.
Testimony specifically regarding A.F.-C. showed that around
two weeks before her death, her friend overheard Rogers telling
another man that he was angry with her because she “had run off”
with two ounces of his crack, worth about $1500. The night before
A.F.-C.’s body was found, A.F.-C. was seen selling drugs on the
street and Rogers was seen nearby. Rogers was heard arguing with
A.F.-C. and threatening her because she owed him money, and two
witnesses saw him hit her.
Additionally, at some time before that night, Rogers had been
looking for A.F.-C., her friend, and another woman who owed him
money, and he went to an apartment where he had heard A.F.-C. or
the other women were staying. Before Rogers got to the apartment,
he told his associate that A.F.-C. was “going to pay,” and he took a
loaded 9 mm gun with him to the apartment, saying that he was
“going up there to get [A.F.-C.’s friend] or [A.F.-C.].” His associate
left when they got to the apartment and he did not know what
happened after he left, but he testified that he never saw A.F.-C.
again.
30

Two days before A.F.-C.’s body was found, the other woman
who owed Rogers money was at the same apartment when Rogers
showed up. At the apartment, she overheard Rogers telling the
man with whom she was staying that he was looking for her,
A.F.-C., and A.F.-C.’s friend because they owed him money.
And, the day after A.F.-C.’s body was found, Rogers drove up
to A.F.-C.’s friend in a car and told her, through the open window,
“Bitch you need to stop playing with my money or you are going to
end up like [A.F.-C.].”
Testimony specifically regarding C.K. showed that some day
right before she was killed, Rogers asked a friend of hers if she had
seen her, and her friend told him where she had seen C.K. about
fifteen to thirty minutes earlier. She testified that Rogers seemed
“upset,” and he told her that C.K. had disappeared with some crack
cocaine that she was supposed to sell for him. She did not see C.K.
again after that.
Also, at some time near when she died, C.K. was at an
apartment with some other people when Rogers showed up; taken
together, several witnesses’ testimony suggested that he may have
come to the apartment because he had heard that she was there.
31

Rogers asked C.K. where she had been, and she said that she was
sorry and that she would make up the “t-shirt” (a unit of crack
cocaine). Rogers told C.K. that she was coming with him and
grabbed her arm. C.K. then left with Rogers.
Testimony specifically regarding R.C. showed that the month
he died, a witness saw Rogers confront R.C. when R.C. was on a
bicycle. Rogers grabbed the bike, and R.C. dropped it. The witness
told police that Rogers beat R.C. while asking R.C. when he was
going to pay Rogers his money.
The other evidence admitted at trial that Rogers challenges on
appeal relates to the Aurora shooting incident in which it was
alleged that Rogers fired the same gun used in the three Denver
murders. The victims (two sisters) of the shooting testified that they
had gone to a Waffle House (sometimes described incorrectly in the
record as an IHOP) late one night in April 2009. At the Waffle
House, they got into an altercation with a group of people, one of
whom they later identified as Rogers. One of them testified that the
man they identified as Rogers threw her into a window and
punched her sister in the eye.

32

They testified that after the fight, they saw Rogers’ group get
into a vehicle and drive away. One of the sisters called 911, and the
911 dispatcher asked her for the license plate of the vehicle. She
testified that because she could not see the plate, she decided to
follow the vehicle in her own car.
She testified that she followed the other vehicle for several
minutes until it pulled into the parking lot of an apartment
complex. She also pulled into the parking lot and stopped her car.
She testified that she saw a man, who she later identified as Rogers,
get out of the vehicle and go up to the trunk of a parked car. Her
sister, who was in the car with her, testified that the same man,
who she also later identified as Rogers, pulled an object out of the
back of the car.
The women testified that the man turned or started walking
toward their car and fired a gun at them. One of them described
the gun as a black .45 or 9 mm and testified that he fired at least
four shots at them before they were able to drive away. Neither
woman was shot.
Several minutes later, police pulled Rogers’ vehicle over a few
miles from the apartment complex. The police officers involved
33

testified that they arrested Rogers, and the victims identified him as
the shooter. The officers testified that they found and collected two
9 mm firearm casings in the parking lot of the apartment complex,
and they learned that the parked car Rogers approached belonged
to his girlfriend at the time who lived in the complex. The firearms
expert involved in this case testified that the recovered casings were
fired from the same weapon as that used in the three murders at
issue here.
A witness who was married to a man she described as Rogers’
best friend testified that she overheard Rogers talking to her
husband about the shooting incident. She told the police that she
heard Rogers say he had had a gun and shot at some girls, and that
the police did not get the gun.
Throughout the testimony of the witnesses described above,
the trial court gave contemporaneous limiting instructions before
and during the testimony. The limiting instruction given during
testimony about Rogers’ drug dealing and assaults against the
victims instructed the jury that “certain evidence may be admitted
for a particular purpose only and for no other,” and that the
witnesses’ testimony could be used as evidence for the purpose of
34

showing motive, intent, deliberation, plan, and identity and should
be considered as evidence for no other purpose. The instruction
given during testimony about Rogers’ threats against and search for
the victims instructed that the testimony could be used as evidence
only for the purpose of showing motive, opportunity, intent and
deliberation, preparation, plan, and identity. And the instruction
given during testimony about the Aurora shooting instructed that
the testimony could be used as evidence only for the purpose of
showing opportunity and identity.
In its final instructions to the jury, the trial court gave the
following limiting instruction:
The Court admitted certain evidence for a
limited purpose.
At that time you were instructed not to
consider it for any purpose other than the
limited purpose for which it was admitted.
You are instructed that any evidence of Mr.
Rogers allegedly searching for [A.F.-C.] or
[C.K.] has been admitted and may be
considered by you only to show plan,
preparation, opportunity, intent and
deliberation, motive, or identity, and cannot be
used for any other purpose, including the
propensity to commit crime generally.

35

You are instructed that any evidence of any
alleged assaults or threats by Mr. Rogers on
any of the named victims may only be used to
show intent and deliberation, motive, plan, or
identity, and cannot be used for any other
purpose, including the propensity to commit
crime generally.
You are instructed that any evidence of Mr.
Rogers allegedly engaging in drug dealing
activities may only be considered as evidence
of motive, intent and deliberation, plan, and
identity, and cannot be used for any other
purpose, including the propensity to commit
crime generally.
You are instructed that any evidence of Mr.
Rogers allegedly shooting at [the victims] in
Aurora during April of 2009 may be considered
only as evidence of opportunity and identity,
and cannot be used for any other purpose,
including the propensity to commit crime
generally.
b. Analysis
Rogers repeatedly objected to the admission of the evidence
described above. To analyze the admissibility of the evidence, the
trial court divided the evidence into five categories: (1) evidence of
Rogers’ drug dealing; (2) assaults by Rogers; (3) threats by Rogers;
(4) Rogers’ search for the victims; and (5) the Aurora shooting
incident. In a comprehensive ruling, it concluded that evidence

36

falling under each category was admissible either under CRE 404(b)
or as res gestae.
Res gestae evidence is “[e]vidence of other offenses or acts that
is not extrinsic to the offense charged, but rather, is part of the
criminal episode or transaction with which the defendant is
charged.” People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). It
is “linked in time and circumstances with the charged crime, forms
an integral and natural part of an account of a crime, or is
necessary to complete the story of the crime for the jury.” People v.
Miranda, 2014 COA 102, ¶ 47 (citation omitted) (cert. granted on
other grounds Aug. 31, 2015). Thus, while “CRE 404(b) evidence is
independent from the charged offense, res gestae evidence is linked
to the offense.” Quintana, 882 P.2d at 1373 n.12.
Res gestae evidence is admissible so long as it is relevant and
its probative value is not substantially outweighed by the danger of
unfair prejudice. People v. Czemerynski, 786 P.2d 1100, 1109
(Colo. 1990).
We review a trial court’s decision to admit evidence of other
acts for an abuse of discretion. Yusem, 210 P.3d at 463. We

37

conclude that the trial court did not abuse its discretion in
admitting the evidence detailed above.
First, regarding the evidence of Rogers’ drug dealing and his
relationship to the victims (that he knew them because they sold
drugs for him), the trial court concluded that the evidence was
admissible as other acts evidence under CRE 404(b). The court
determined that the evidence was related to the material facts of
opportunity, identity, mental state, motive, and common scheme,
and, specifically, that it was relevant because it established that
Rogers knew the victims — and if he knew them it made it more
likely that he killed them — and had a motive to kill them (their
drug debts).
We agree with the trial court that the drug dealing evidence
met the four-prong test for admissibility of other acts evidence
under CRE 404(b). As the trial court explained, the case was
centered on drug dealing and usage and it would have been
impossible to meaningfully try the case without admitting evidence
of the context in which Rogers knew the victims. Moreover, the
prosecution’s theory of the case was that Rogers’ motive for the
murders also involved drug dealing. The evidence thus was used
38

for purposes independent of an inference of bad character. See
Yusem, 210 P.3d at 463. And given the obvious probative value of
the evidence and the prosecution’s need for it, its probative value
was not substantially outweighed by the danger of unfair prejudice.
See Cousins, 181 P.3d at 370.
The jury also was correctly instructed on the limited purpose
for which the evidence could be considered. See Kaufman, 202 P.3d
at 552; see also People v. Warren, 55 P.3d 809, 815 (Colo. App.
2004) (“Generally, a trial court should instruct the jury on the
limited purposes for which CRE 404(b) evidence may be considered
at the time the evidence is admitted and again in the closing charge
to the jury.”).
Second, the trial court determined that evidence of Rogers’
assaulting A.F.-C. and R.C. also was admissible under CRE 404(b)
because it related to the material fact of identity (establishing a
relationship between Rogers and the victims), Rogers’ mental state
(deliberation, intent, and motive), and his common scheme and
plan to collect drug debts. The court concluded that the evidence
was logically relevant independent of the improper propensity
inference because it demonstrated a specific tendency on the part of
39

Rogers to use violence to collect his debts. The court explained that
evidence of Rogers’ escalating violence makes it more likely that he
committed the murders because it is more likely that he was willing
to shoot someone if he was willing to assault him or her, and if
there had been a dispute between them that had led to violence in
the past.
We agree with the trial court that evidence of the assaults
against the victims was material and relevant to establish identity
and motive. That Rogers previously used violence against two of the
victims makes it more likely that he was the one who used deadly
violence against them. And evidence of his motive for assaulting
them — drug debts — makes it more likely that he had the same
motive for killing them. The logical relevance of this evidence is
independent of the prohibited propensity inference; the evidence
was offered not to show that Rogers was a bad person and thus
likely killed the victims but rather to show that he had acted
violently toward the victims in the past for the same reason he
allegedly killed them. For the same reason, the probative value of
the evidence is not substantially outweighed by the danger of unfair
prejudice. And again, the court correctly gave the jury a limiting
40

instruction on the purpose for which the evidence could be
considered.
Third, the trial court determined that evidence of Rogers’
search for the victims was “part and parcel of the homicides.” The
court explained that looking for the victims was part of the story of
how the charged crimes were committed, because Rogers had to
find the victims before he could shoot them.
We agree with the trial court that evidence of Rogers’ search
for the victims constituted part of the criminal episodes or
transactions with which Rogers was charged. See People v. Agado,
964 P.2d 565, 567 (Colo. App. 1998). Evidence of the events
leading up to the murders, including Rogers’ search for the victims,
was part of the “scenario” that explained how the crimes occurred.
See People v. Coney, 98 P.3d 930, 932 (Colo. App. 2004).
Consequently, evidence of the search was highly probative, its
probative value was not substantially outweighed by the danger of
unfair prejudice, and it was admissible as res gestae.
Fourth, the court determined that evidence of Rogers’ prior
threats against the victims was admissible under CRE 404(b)

41

because it related to the material facts of motive, identity, intent
and deliberation, and common scheme and plan. We agree.
Evidence that Rogers made threats against the victims for
failing to pay their debts makes it more likely that he had a motive
to commit the crime, followed through on the threats, and was the
one who killed the victims. The threat Rogers made against
A.F.-C.’s friend after A.F.-C.’s murder that she would “end up” like
A.F.-C. if she did not pay her debt also makes it more likely that
Rogers killed the victims in furtherance of a common scheme
relating to collecting drug debts. Evidence of the threats thus was
relevant independent of the improper propensity evidence, and its
obvious probative value was not substantially outweighed by the
danger of unfair prejudice, especially considering the limiting
instruction given to the jury that prescribed the permissible
purposes for which the evidence could be considered.3

The evidence of Rogers’ threats against the victims alternatively
could be analyzed as res gestae evidence with the same result.
Generally, if an act of violence is committed against someone who
previously had been threatened by the same perpetrator, the threat
is part of the same criminal episode or transaction as the act itself.
See People v. Jaramillo, 183 P.3d 665, 668 (Colo. App. 2008).

3

42

Regarding the evidence falling into these first four categories
— Rogers’ drug dealing and his assaults and threats against and
search for the victims — Rogers argues that even if evidence
relating to each specific victim was admissible as to the count
involving that victim, it was not admissible as to the counts
involving the other two victims. Likewise, Rogers argues that the
trial court erred in rejecting his tendered limiting instruction that
limited the jury’s consideration of the other acts and res gestae
evidence relating to each victim to the particular count involving
that victim, and provided that such evidence could not be used for
proof as to any issue regarding the offenses charged in the other
two counts.
We reject both of these contentions. Evidence establishing
that Rogers committed one of the murders was also relevant to
establish that he committed the other two murders due to the
striking similarities between all three crimes.
Fifth, the trial court determined that evidence of the Aurora
shooting was admissible under CRE 404(b) because it related to the
material facts of identity and opportunity. The court explained that
Rogers’ prior access to the murder weapon made it more likely that
43

he had access to the gun at the time of the murders, an inference
that was independent of the improper inference of bad character.
The court also stated that the evidence was not cumulative because
although there was evidence of Rogers’ fingerprint on the magazine,
a magazine is a removable and interchangeable part, and the police
finding the gun at his girlfriend’s house did not prove Rogers’
exclusive possession of the gun. The court concluded that the
probative value of tying Rogers to the murder weapon was simply
overwhelming.
The trial court’s order regarding evidence of the Aurora
shooting is clearly correct, and the satisfaction of each prong of the
Spoto test for admission of CRE 404(b) evidence is obvious.
Nevertheless, Rogers argues that even if evidence of the shooting
itself was admissible, testimony about the altercation at the Waffle
House before the shooting was not. We disagree.
The events leading up to the shooting constituted proper CRE
404(b) evidence because they were part of the same incident as the
shooting. In the same way that res gestae evidence is part of the
criminal episode or transaction with which the defendant is
charged, Quintana, 882 P.2d at 1373, the Waffle House altercation
44

was “so closely connected” to the main fact — the shooting — “as to
constitute a part of the transaction, and without which the main
fact might not be properly understood.” People v. Rollins, 892 P.2d
866, 872-73 (Colo. 1995) (citation omitted). Without hearing
evidence regarding what happened at the Waffle House, the jury
would not have had “a full and complete understanding of the
events surrounding the [the shooting] and the context in which [it]
occurred,” Quintana, 882 P.2d at 1373, and would have been left
with the false impression that the shooting was simply a random
act of violence, see People v. Fears, 962 P.2d 272, 280 (Colo. App.
1997).
Accordingly, the trial court did not abuse its discretion in
admitting the other acts and res gestae evidence challenged by
Rogers on appeal.
c. Cumulative Error
Lastly, Rogers argues that the cumulative effect of the trial
court’s failure to sever the counts and its admission of the other
acts and res gestae evidence described above was overwhelmingly
prejudicial, and thus he is entitled to reversal of his convictions.
Reversal is required under the doctrine of cumulative error if
45

“numerous formal irregularities, each of which in itself might be
deemed harmless, . . . in the aggregate show the absence of a fair
trial.” People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986). However,
to obtain reversal, the doctrine “requires that numerous errors be
committed, not merely alleged.” People v. Rivers, 727 P.2d 394, 401
(Colo. App. 1986). Because we have concluded that the trial court
did not err in denying the motion to sever and admitting the other
acts and res gestae evidence, Rogers’ right to a fair trial was not
prejudiced.
IV. Conclusion
The judgment of conviction is affirmed.
JUDGE RICHMAN and JUDGE DUNN concur.

46

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