v. Forgette

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

SUMMARY
February 25, 2021

2021COA21

No. 16CA0441, People v. Forgette — Criminal Law — Conduct
Affecting Juries — Waiver

In this criminal appeal a division of the court of appeals

addresses an issue of juror inattentiveness — namely, whether a

juror’s inattentiveness during the presentation of evidence deprived

the defendant of his statutory right to a jury of twelve. The division

considers this issue in light of the fact that defense counsel was

aware of the juror’s inattentiveness but didn’t request any remedy.

The division concludes that, under the circumstances of the case,

the defendant waived his claim to challenge the juror’s

inattentiveness on appeal. Because the division also rejects the

defendant’s other contentions, it affirms the defendant’s conviction

and sentence.
COLORADO COURT OF APPEALS 2021COA21

Court of Appeals No. 16CA0441
City and County of Denver District Court No. 14CR4805
Honorable Kenneth M. Laff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Elliott J. Forgette,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division VI
Opinion by JUDGE WELLING
Fox and Freyre, JJ., concur

Announced February 25, 2021

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Elliott J. Forgette, appeals a district court’s

judgment of conviction and sentence for burglary. This appeal

presents an issue of juror inattentiveness — namely, whether a

juror’s inattentiveness during the presentation of evidence deprived

Forgette of his statutory right to a jury of twelve. We consider this

issue in light of the fact that defense counsel was aware of the

juror’s inattentiveness but didn’t request any remedy. We conclude

that, under these circumstances, Forgette waived his claim to

challenge the juror’s inattentiveness on appeal. Because we also

reject his other contentions, we affirm Forgette’s conviction and

sentence.

I. Background

¶2 C.B. and N.R.J., along with a friend, returned to their home

after dinner to discover a white sedan parked outside of their home

and an unfamiliar man standing nearby. The three approached the

man, asking if they could help him find something; he responded

that he was looking for a nearby address. N.R.J. observed the man

holding a package belonging to her neighbor and asked him if he

took the package from her neighbor’s porch. The man didn’t

answer and instead threw the package toward C.B. and N.R.J. The

1
man then ran away and drove off in the white sedan. When C.B.

entered his home, he discovered some of his electronics were

missing, so he called the police.

¶3 Across town, Officer Brandon Zborowski, unaware of the

events at C.B. and N.R.J.’s home, stopped Forgette for a traffic

violation. Forgette was uncooperative during the traffic stop and

was arrested on that basis. The police eventually connected

Forgette to the burglary of C.B. and N.R.J.’s home, leading to the

charges in this case.

¶4 A jury convicted Forgette of second degree burglary of a

dwelling, and the trial court sentenced him to twelve years in the

custody of the Department of Corrections.

II. Analysis

¶5 Forgette raises three issues on appeal. First, he contends that

we must reverse his conviction because one of the jurors fell asleep

during the presentation of evidence, depriving him of his statutory

right to a twelve-person jury. Second, Forgette contends that the

trial court committed two evidentiary errors when it admitted

(1) photos of him taken while he was in custody and (2) testimony

describing his unruly conduct during the traffic stop. Third, he

2
contends that the trial court erred when it imposed a more severe

sentence based on its finding that he was on felony probation at the

time of the burglary.

¶6 We address, and reject, each contention in turn below.

A. Sleeping Juror

1. Additional Factual Background

¶7 On the first day of trial, the jury was selected and two

witnesses testified; there were no reports of sleeping jurors that first

day.1

¶8 On the morning of the second day of trial, three witnesses

testified. The second witness was C.B., who testified about his

encounter with the man outside his home on the night in question.

During cross-examination of C.B., the court asked counsel for both

sides to approach the bench to discuss a scheduling matter. The

following exchange occurred at the bench and outside of the

hearing of the jury:

THE COURT: . . . [H]ow long [do] you have to
finish this witness[?]

1On the first day of trial, the trial court dismissed the only
alternate juror due to a scheduling conflict for that particular juror.
This left the jury without an alternate.

3
[Defense Counsel K.]: I’m about five to ten
minutes away from being done, probably closer
to five.

THE COURT: Then we have redirect.

[Prosecutor G.]: [Juror Number Seven] is now
asleep, Judge, and has been for about the last
five minutes.

THE COURT: Let’s take a break.

¶9 The court called a brief recess; there was no further discussion

of the sleeping juror the remainder of the morning.

¶ 10 That afternoon, three more witnesses testified. N.R.J. was the

second witness to testify in the afternoon. At the close of cross-

examination of N.R.J., the court called counsel for both sides to the

bench to discuss juror questions for the witness. During the bench

conference, defense counsel indicated that the sleeping juror from

before was, once again, asleep:

THE COURT: All right. Any juror questions for
[the witness]? Please send those to my bailiff.
If counsel will approach.

(The following proceedings were held at the
bench out of the hearing of the jury:)

[Defense Counsel C.]: Juror Number Seven is
asleep, or I think next to your front --

[Defense Counsel K.]: We’ve lost him again.

4
THE COURT: Yes. He does appear to be dozing
off. I have been checking periodically, and he
had been fine. I also would note that in [sic]
the first time this was mentioned, he actually
asked a question of that juror [sic] -- I noticed
he passed one of the notes. So, I think he is
with us sometimes. I’ve been trying to keep an
eye on him, and I certainly have tapped the
microphone, which usually works. I noticed as
soon as we started to speak after that last
break, he was attentive. He does seem to be
eyes closed and being on sand at the moment.

[Defense Counsel C.]: I’m just concerned
because I don’t know if the Court observed
how long he’s been asleep.

THE COURT: Well, it’s probably been 15
minutes since I looked over at him.

[Defense Counsel C.]: Okay.

THE COURT: My law clerk indicates he keeps
perking up, but he saw him watching five
minutes ago. So, that’s as much as we can tell
you. We are trying to keep an eye on him.

[Defense Counsel K.]: Can we try to rouse him
now?

THE COURT: Well, we might as well do it when
we’re done with this discussion of jury
questions.

[Defense Counsel C.]: Of course.

(The following proceedings were held in open
court:)

5
THE COURT: I understand the jury would like
to take a break, so why don’t we do that now,
and then we’ll take up these questions. So, if
you’ll be back at 3:05, we will have a few more
questions for you, possibly from the jury,
ma’am, before we complete. And you can take
a break as well. Please don’t have any contact
with the jurors. And so, as always, please
continue to follow my rules. Have a good
break. Ring in about 3:05. Thank you.

¶ 11 The court then released the jurors for a short break before

posing the jury’s questions.

¶ 12 There were no further reports or discussions of sleeping or

inattentive jurors for the remainder of trial.

2. Analysis

a. Any Objection to the Sleeping Juror Isn’t Preserved

¶ 13 As a threshold matter, Forgette contends that his objection to

the sleeping juror was preserved because it was brought to the

court’s attention. While we agree that the issue of the sleeping

juror was brought to the court’s attention, defense counsel never

requested a remedy and the trial court wasn’t presented with any

specific objection to rule on.

¶ 14 Forgette’s counsel informed the trial court of the sleeping juror

in a bench conference, but he never asked the court to do anything

6
about it. A statement that a juror was asleep during proceedings,

without a request for a remedy or a specific objection, doesn’t

present the court with anything to rule on and is, therefore,

insufficient to preserve the issue. People v. Greer, 262 P.3d 920,

924 (Colo. App. 2011); cf. People v. Ujaama, 2012 COA 36, ¶ 37.

Therefore, we conclude that the issue is unpreserved.

¶ 15 Having concluded that the issue wasn’t preserved, we must

determine whether the issue was waived, and thereby unreviewable,

or merely forfeited and reviewable for plain error. But before we can

resolve that issue, we must determine whether the defendant’s

personal participation in any waiver is necessary or whether

counsel can effectuate a waiver. Because the answer to that

question hinges on the nature of the right at stake, we turn there

next.

b. Nature of the Right at Stake

¶ 16 In Colorado, a criminal defendant charged with a felony has a

constitutional right to a twelve-person jury. See People v.

Rodriguez, 112 P.3d 693, 699 (Colo. 2005) (interpreting Colo. Const.

art. II, § 23). But a defendant’s constitutional rights — even

fundamental constitutional rights — may be waived. See, e.g.,

7
Stackhouse v. People, 2015 CO 48, ¶ 8 (“[E]ven fundamental rights

can be waived, regardless of whether the deprivation thereof would

otherwise constitute structural error.”); see also Richardson v.

People, 2020 CO 46, ¶ 24 (“Constitutional and statutory rights can

be waived or forfeited.”).

¶ 17 “[I]ntensely personal and fundamental” rights, such as the

right to counsel, the right to testify, and the right to a trial by jury,

can only be waived through a knowing, voluntary, and intelligent

waiver, executed personally by the defendant. Moore v. People,

2014 CO 8, ¶ 9; see also People v. Bergerud, 223 P.3d 686, 693-94

(Colo. 2010) (“Decisions such as whether to plead guilty, whether to

testify, whether to waive a jury trial, or whether to take an appeal

are so fundamental to a defense that they cannot be made by

defense counsel, but rather must be made by the defendant

himself.” (citing Jones v. Barnes, 463 U.S. 745, 751 (1983))).

Among those personal rights is the right to trial by jury. Rice v.

People, 193 Colo. 270, 271, 565 P.2d 940, 941 (1977).

¶ 18 Because the right to a jury trial is a personal right, inaction by

counsel alone can’t operate as a waiver of a defendant’s right to a

jury trial. See id. But the right implicated wasn’t Forgette’s right to

8
a jury trial. Indeed, all of the facts necessary to determine

Forgette’s guilt were determined by the jury, not the court. And

Forgette doesn’t contend otherwise. Instead, he contends that

because one member of the jury was asleep for some portion of the

trial, he was deprived of his right to a jury of twelve.

¶ 19 There is a distinction between the waiver of the right to a jury

trial and the waiver of the right to a jury of twelve. A defendant’s

waiver of a jury trial is “the defendant’s alone and may be made

contrary to counsel’s advice.” Crim. P. 23(a)(5)(II). But the waiver

of the right to a jury of twelve may be made by defendant or defense

counsel. See People v. Chavez, 791 P.2d 1210, 1211 (Colo. App.

1990) (counsel’s verbal request for a six-person jury, on the record,

was sufficient to waive the statutory right to a twelve-person jury);

cf. Crim. P. 23(a)(7) (providing that if a juror becomes unavailable

during trial and there is no alternate “the defendant and the

prosecution . . . may stipulate in writing or on the record in open

court, with approval of the court, that the jury shall consist of less

than twelve but no fewer than six in felony cases”); People v. Baird,

66 P.3d 183, 189-90 (Colo. App. 2002).

9
¶ 20 Because we conclude that the right at stake was continuing

trial with a jury of fewer than twelve — not the right to a trial by

jury itself — we reject Forgette’s contention that only he could waive

the right at stake here. Instead we conclude that the right to insist

on proceeding with a jury of twelve may be waived on behalf of a

defendant by counsel. See Chavez, 791 P.2d at 1211 (rejecting the

defendant’s contention that “the right to a twelve person jury is a

fundamental right that cannot be waived by defense counsel” and

holding that the requirement of a personal waiver “does not extend

to a reduction in the number of jurors”). Accordingly, Forgette’s

personal participation in the waiver wasn’t necessary for it to be

effective.

c. Forgette, through Counsel, Waived Appellate Review of Any
Error Related to the Sleeping Juror

¶ 21 Having concluded that the defendant’s personal participation

in a waiver isn’t required, we must next determine whether defense

counsel’s statements and conduct constituted waiver or merely

forfeiture.

¶ 22 Waiver requires evidence of an “intentional relinquishment of a

known right or privilege.” Phillips v. People, 2019 CO 72, ¶ 16

10
(quoting People v. Rediger, 2018 CO 32, ¶ 39). Waiver may be either

express or implied. See Rediger, ¶ 42. But we “do not presume

acquiescence in the loss of fundamental constitutional rights, and

therefore indulge every reasonable presumption against waiver.” Id.

at ¶ 39 (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).

The failure to timely assert a right, without a showing of intentional

relinquishment, constitutes forfeiture, not waiver. Id. at ¶ 40.

Importantly, the waiver of a right extinguishes review on appeal but

forfeiture allows for review under the plain error standard. Id. at

¶ 35.

¶ 23 Over the last several years, our supreme court has provided

considerable guidance regarding the often fuzzy line between waiver

and forfeiture. See Phillips, 2019 CO 72; Cardman v. People, 2019

CO 73; Rediger, 2018 CO 32; People v. Smith, 2018 CO 33.

Certainly, the bar for finding waiver is high, but it’s not

insurmountable. See Stackhouse, ¶¶ 5, 8, 10 (finding waiver of an

improper courtroom closure).

¶ 24 We begin our analysis by reviewing the claims of error

advanced in each of the four most recent supreme court cases on

the subject. In Rediger, the defendant asserted that a discrepancy

11
between his charge and the jury instructions resulted in a

constructive amendment of the charging document. Rediger, ¶¶ 8-

11. At the close of evidence, defense counsel informed the court

that he was “satisfied” with the prosecution’s proposed jury

instructions, though they tracked the incorrect subsection of the

statute. Id. On appeal, the People argued that Rediger’s claim was

waived. Id. at ¶ 32. The supreme court concluded that “neglect,

not intent, explains Rediger’s lack of an objection to the

constructive amendment” because the record showed that neither

the defendant nor his counsel knew of the discrepancy. Id. at

¶¶ 42, 44. This, the supreme court concluded, was forfeiture, not

waiver. Id. at ¶ 47.

¶ 25 In Smith, the defendant asserted on appeal that a discrepancy

between his charge and the jury instructions created an improper

variance that resulted in a non-unanimous verdict. Smith, ¶ 10.

When asked by the court during trial, however, defense counsel

indicated that the relevant proposed jury instruction was

“acceptable.” Id. at ¶ 6. On appeal, the People argued that Smith’s

claim was waived. Id. at ¶ 11. The supreme court concluded that,

by stating that the instructions generally were “acceptable” to him,

12
Smith didn’t intend to relinquish a variance claim; therefore, he

didn’t waive the claim he was advancing on appeal. Id. at ¶ 22.

¶ 26 In Phillips, the defendant sought to suppress statements he

made while in custody and a gun recovered from his car. Phillips,

¶ 6. But the trial court admitted both the statements and the gun.

Id. On appeal, Phillips challenged the evidence on different grounds

than those raised in his suppression motion, and a division of this

court concluded that those new contentions were waived. Id. at ¶ 8.

The supreme court reversed, concluding that the contentions

weren’t waived but merely forfeited as the record was “barren of any

indication that defense counsel considered raising the unpreserved

contentions before the trial court but then, for a strategic or any

other reason, discarded the idea.” Id. at ¶ 22.

¶ 27 In Cardman, the defendant moved to suppress his pretrial

confession, but the trial court denied his motion. Cardman, ¶ 6.

On appeal, Cardman raised a voluntariness claim that he hadn’t

advanced in his suppression motion, and a division of this court

concluded the claim was waived. Id. at ¶ 7. The supreme court

disagreed, concluding that there wasn’t evidence that defense

counsel “intended to relinquish Cardman’s right to challenge the

13
admissibility of the confession, including on voluntariness

grounds.” Id. at ¶ 11. In so concluding, the supreme court also

reasoned that defense counsel couldn’t have gained a strategic

advantage by refraining from raising an argument to suppress

damaging evidence. Id.

¶ 28 The errors advanced on appeal in Rediger, Smith, Phillips, and

Cardman — and found not to have been waived — have two key

characteristics in common: (1) there is no indication in the record of

any of the four cases that counsel was actually aware at trial of the

specific error complained of on appeal, Rediger, ¶ 43 (“Nor . . . do

we perceive any evidence that Rediger knew of the discrepancy

between the People’s tendered jury instructions and the charging

document.”); Smith, ¶ 18; Phillips, ¶ 22; Cardman, ¶ 18; and

(2) there was no conceivable strategic basis for not asserting the

error at trial, Phillips, ¶ 28 (“[W]e are hard pressed to think of

strategic reasons for failing to raise Phillips’s unpreserved claims in

the trial court.”); Cardman, ¶ 11 (“Given that Cardman’s counsel

clearly (and understandably) wanted the confession excluded from

the trial, what benefit could he have obtained from his failure to

14
present an additional ground to contest its admissibility? None

comes to mind.”); Rediger, ¶ 42; Smith, ¶¶ 17–18.

¶ 29 But the record here is more akin to that of Stackhouse2 rather

than the quartet of cases discussed above. In Stackhouse, the

supreme court concluded that defense counsel waived the right to

object to a courtroom closure after counsel became aware of the

closure but chose not to object to it. Stackhouse, ¶ 2. The supreme

court reasoned that “[a]llowing a defense attorney who stands silent

during a known closure to then seek invalidation of an adverse

verdict on that basis would encourage gamesmanship, and any ‘new

trial would be a “windfall” for the defendant . . . .’” Id. at ¶ 16

(citation omitted).

¶ 30 Stackhouse is more apposite than the four more recent cases

for two independent reasons. First, like the courtroom closure in

Stackhouse, Forgette’s defense counsel was aware that a juror was

asleep during the presentation of evidence but chose to remain

mute regarding a remedy. The juror’s closed eyes in this case were

2In Phillips v. People, 2019 CO 72, ¶¶ 26-29, the supreme court
expressly confirmed the continuing viability of the waiver analysis it
undertook in Stackhouse.

15
as apparent to defense counsel as the closed doors of the courtroom

in Stackhouse. Indeed, at least with respect to counsel’s awareness

of the error at trial, the case for waiver is more compelling here than

in Stackhouse. In Stackhouse, the supreme court inferred counsel’s

awareness of the supposedly improper courtroom closure from

counsel’s presence in the courtroom during the closure. Id. at ¶ 4.

Here no inference was necessary, as it was defense counsel who

brought the fact a juror appeared to be sleeping to the court’s

attention.

¶ 31 Second, there are conceivable strategic reasons for defense

counsel not to have requested relief. As the supreme court

recognized in Stackhouse, the strategic decision was “particularly

apparent in the context of Stackhouse’s jury selection for his trial

on charges of sexual assault on a minor.” Id. at ¶ 15. There,

defense counsel may have favored closure to allow jurors to be

candid, to avoid jurors intermingling with the victim’s family, or to

avoid prejudicing the jury with pretrial media. Id.; see also Phillips,

¶ 22 (discussing the basis for inferring a waiver when defense

counsel fails to object to a courtroom closure). Similarly, Forgette’s

counsel may have determined that the sleeping juror was favorable

16
to the defense or that his effective absence from hearing eyewitness

cross-examination was beneficial. See Richardson, ¶ 26 n.2 (noting

in finding waiver of a juror challenge that “[d]efense counsel could

have had sound strategic reasons for th[e] decision” not to object to

the juror). This potential strategic rationale stands in stark

contrast to Rediger, Smith, Phillips, and Cardman, where such a

conceivable rationale was wholly absent.

¶ 32 Because strategic motivation may keep counsel from objecting

to a sleeping juror and such decisions shouldn’t permit “an

appellate parachute to non-objecting defense counsel” in the

outcome of a conviction, Stackhouse, ¶ 16, we conclude that

counsel’s failure to request relief for the known defect of a sleeping

juror constitutes waiver.

¶ 33 Because we conclude that Forgette waived his right to

appellate review of this issue, we won’t consider the merits of his

contention. See, e.g., Richardson, ¶ 24 (“[W]aiver extinguishes error

and therefore any appellate review.”).

B. Evidentiary Claims

¶ 34 Next Forgette contends that the trial court’s two evidentiary

errors warrant reversal. First, he contends that the trial court

17
abused its discretion under CRE 403 by admitting three photos of

him taken while he was in custody. Second, he contends the court

abused its discretion when it allowed an officer to testify regarding

his behavior during the traffic stop that precipitated his arrest.

Forgette also contends that, if the errors don’t warrant reversal on

their own, then the errors cumulatively warrant reversal. We aren’t

persuaded that the court erred.

1. Photos

a. Additional Factual Background

¶ 35 Forgette’s first contention relates to a series of five photos that

were introduced as evidence to aid in his identification. These

photos were Exhibits 19 through 23. Specifically, Forgette

contends that, while Exhibits 19 and 20 were properly admitted,

Exhibits 21, 22, and 23 shouldn’t have been admitted.

¶ 36 During a pre-trial hearing, the prosecutor said that Forgette’s

appearance had changed significantly since the time of the

burglary. Concerned about whether the eyewitnesses would be able

to identify Forgette in court, the prosecutor said that she intended

to introduce photos of Forgette to show how his appearance had

changed over time if witnesses had difficulty identifying him.

18
¶ 37 The photos at issue were taken several months apart from one

another and provided a visual timeline of Forgette’s hair styles and

weight gain since the first photo of him was taken on the night of

the incident — later admitted as Exhibit 19 and shown below.

Defense counsel had no objection to the admission of Exhibit 19

but said that Forgette wouldn’t stipulate that the person pictured in

Exhibit 19 was him.

Exhibit 19, taken August 10, 2014

¶ 38 Because whether Forgette was the person depicted in

Exhibit 19 was going to be a contested issue at trial, the

prosecution needed to connect Exhibit 19 to Forgette — as he

appeared at trial. To meet this burden, the prosecutor said that he

19
intended to introduce four additional photographs of Forgette,

taken since the August 10, 2014, arrest, for identification purposes.

In support of his argument in favor of introducing these additional

photos, the prosecutor said,

And I think when ID is at such an issue, we
have a need to provide as much information as
we can regarding what the defendant’s
appearance is and was, and those kind of
things. As you know, he sits here not only
with no facial hair, but as I’ve already made a
record, with his hair slicked back. And the
way he’s even wearing his hair, his hair almost
has a different color to it.

¶ 39 The first photo the prosecution requested to introduce was

Exhibit 20, shown below, a booking photo of Forgette taken a few

days after his arrest. Forgette’s counsel didn’t object to the

introduction of this photo.

20
Exhibit 20, taken August 16, 2014

¶ 40 The photos in Exhibits 21, 22, and 23 were taken while

Forgette was in custody for unrelated reasons. In these photos, like

in Exhibit 20, Forgette is wearing jail-issued clothing. Unlike

Exhibit 20, however, Forgette’s attorney objected to the introduction

of these three photos, arguing that the photos implied criminality

by providing a repeated visual of Forgette in jail-issued clothing

(despite not objecting to Exhibit 20 — a photo depicting Forgette in

jail-issued clothing). Forgette’s counsel argued that this repeated

visual was unduly prejudicial, and suggested that, instead, the

People should introduce a government-issued photo such as a

driver’s license photo from the Division of Motor Vehicles. Or, in

the alternative, defense counsel suggested that the court shouldn’t

admit all three photos and instead choose only one or two to reduce

the cumulative impact of their collective prejudice.

¶ 41 Based on Forgette’s attorney’s concerns, the photos in

Exhibits 20, 21, 22, and 23 were eventually cropped and the jail-

issued clothing visually removed using gray blocks over the portion

of each photo where his clothing was visible. The court ruled that it

would permit the People to introduce the cropped photos at trial.

21
Below are Exhibits 21, 22, and 23 (as introduced and admitted at

trial):

Exhibit 21, taken June 2, 2015

Exhibit 22, taken July 1, 2015

22
Exhibit 23, taken September 21, 2015

¶ 42 In ruling to admit the photos, the trial court said,

I mean, if there was a stipulation that [Exhibit]
19 was the person in the courtroom, we
wouldn’t need this, but the People do have a
burden to prove these charges beyond a
reasonable doubt. They’re entitled to present
all the evidence of identity they have that’s not
unduly prejudicial. These [cropped photos] do
not show a jail uniform, and therefore I don’t
think they’re unduly prejudicial. This fixes the
jail issue.

The court also said,

If you were willing to stipulate that [Exhibit] 19
was this Mr. Forgette, I wouldn’t have this
issue. You don’t have to, but that means that
you have placed identity at issue, and the
People have the burden to prove that beyond a
reasonable doubt, and so they’re entitled to
show photos . . . . ID is an issue, and the
People can’t be restricted from putting in

23
evidence that doesn’t have another prejudicial
taint. And so I mean, these are certainly
probative, and they’re not unfairly prejudicial.
They establish what the People are entitled to
show, that the person in these photos, which
more closely resembles the defendant as he
sits here today, is the defendant. That’s their
burden, and they have to be allowed to attempt
to carry it with relevant and admissible
evidence.

b. Standard of Review and Legal Principles

¶ 43 A trial court’s decision to admit evidence is reviewed for an

abuse of discretion. Yusem v. People, 210 P.3d 458, 463 (Colo.

2009). A trial court abuses its discretion when its decision was

“manifestly arbitrary, unreasonable, or unfair,” People v. Rath, 44

P.3d 1033, 1043 (Colo. 2002), or it misapplied the law, People v.

Williams, 2019 COA 32, ¶ 21. In assessing whether a trial court’s

decision was manifestly arbitrary, unreasonable, or unfair, we ask

not if we would have reached a different result but, rather, whether

the trial court’s decision fell within a range of reasonable options.

See People v. Rhea, 2014 COA 60, ¶ 58.

¶ 44 Evidence is relevant if it tends to make the existence of any

fact of consequence to the determination of the action more

probable or less probable than it would be without the evidence.

24
CRE 401. But relevant evidence may be excluded if the danger of

unfair prejudice substantially outweighs the legitimate probative

value of the evidence. CRE 403. Evidence is unfairly prejudicial

only if it has an undue tendency to suggest a decision on an

improper basis. Masters v. People, 58 P.3d 979, 1001 (Colo. 2002).

In reviewing the trial court’s determination, we assume the

maximum probative value that a reasonable fact finder might give

the evidence and the minimum unfair prejudice to be expected.

People v. Webster, 987 P.2d 836, 840 (Colo. App. 1998).

c. Analysis

¶ 45 The trial court didn’t abuse its discretion by admitting

Exhibits 21, 22, and 23 for two reasons.

¶ 46 First, the photos were substantially probative of identity, a

hotly contested issue at trial. None of the eyewitnesses gave a

strong positive in-court identification; instead, they said that

Forgette, as he appeared at trial, looked different from the man who

appeared at their home. For example, N.R.J. testified as follows:

[Prosecutor]: Okay. [N.R.J.], I’m going to ask
you do you see the individual that you
encountered on August 10th, 2014, in the
courtroom today?

25
[N.R.J.]: I believe it’s the defendant. He looks
like he’s gained a lot of weight, not nearly as
skinny, but --

....

[Prosecutor]: You say you believe it’s him, and
he’s gained a little bit of weight. Is there
anything else about him that you notice is
different?

[N.R.J.]: Longer hair, no facial hair.

¶ 47 Similarly, C.B. testified that he believed the person in Exhibit

19 was the person he encountered at his home on the night of the

burglary. And while he believed that Forgette, sitting in court, was

the same person he saw on that night, he said that Forgette looked

different at trial than he did on the night in question. The

prosecutor correctly anticipated that the issue of identification

might be difficult based on Forgette’s change in appearance. And

the disputed photographs — Exhibits 21, 22, and 23 — were

probative of the contested issue of who was depicted in Exhibit 19.

See People v. Thatcher, 638 P.2d 760, 768 (Colo. 1981) (a

defendant’s mug shot is especially relevant to the defendant’s

identification where the defendant’s appearance has changed

between the time of the alleged crime and trial), superseded by rule

on other grounds as stated in People v. Dist. Ct., 790 P.2d 332 (Colo.

26
1990); People v. Bozeman, 624 P.2d 916, 920 (Colo. App. 1980)

(introduction of altered mug shots wasn’t an abuse of discretion

because they were introduced for the purpose of identification in

court).

¶ 48 Second, the photos weren’t unduly prejudicial. While

reference to the existence of booking photos is generally considered

prejudicial, it isn’t unduly prejudicial where the effect is mitigated.

People v. Pickett, 194 Colo. 178, 185, 571 P.2d 1078, 1083 (1977)

(holding that the introduction of mug shots wasn’t prejudicial

because identifying numbers had been removed and the pictures

were full-face photos, in street clothes); see also People v. Montoya,

190 Colo. 11, 15, 543 P.2d 514, 517 (1975) (holding that the

introduction of photographs wasn’t prejudicial where the photos

were simple, without any police identification numbers or other

indicators that they were taken while defendant was in custody); cf.

People v. Borrego, 668 P.2d 21, 24 (Colo. App. 1983) (“While,

generally, reference to the existence of mug shots is considered

prejudicial, here the effect was mitigated because the prosecutor

referred to the books of mugshots as ‘photograph albums.’”).

Similar to Pickett and Montoya, the prejudicial impact of Forgette’s

27
custodial status in Exhibits 21, 22, and 23 was mitigated by the

digitally imposed gray squares covering his jail-issued clothing.

This mitigation effort left only full-face photos for the jury’s

consideration regarding identification, and, thus, their admission

wasn’t prejudicial. Pickett, 194 Colo. at 185, 571 P.2d at 1083;

Montoya, 190 Colo. at 15, 543 P.2d at 517.

¶ 49 Accordingly, we conclude that the trial court didn’t abuse its

discretion by admitting Exhibits 21, 22, and 23. See Williams, ¶ 21.

2. Traffic Stop

a. Additional Factual Background

¶ 50 The day of the burglary, Officer Zborowski stopped Forgette for

an alleged traffic violation. During trial, the prosecutor called

Officer Zborowski to testify about Forgette’s unruly behavior during

the traffic stop. Officer Zborowski testified that after pulling him

over, Forgette got out of the car, walked away from him, and didn’t

listen to his instructions. Officer Zborowski handcuffed Forgette for

disregarding his commands. Officer Zborowski testified that after

he handcuffed Forgette, Forgette threw his car keys into his car and

kicked his car door shut, locking the keys inside and preventing

28
Officer Zborowski from entering the vehicle. The stolen items were

later found in the car after it was impounded.

¶ 51 The People sought to introduce Officer Zborowski’s testimony

regarding Forgette’s conduct, arguing it was probative of his

knowledge of the stolen items in his vehicle. The prosecutor

reasoned that because Forgette went to “such great lengths” to

prevent Officer Zborowski from accessing his vehicle, the jury could

infer that he did so because he must have been hiding stolen items

from the burglary. But Forgette argued that he behaved this way

during the traffic stop because he had controlled substances and

drug paraphernalia in the car that he didn’t want the officer to find,

not because he was aware there were stolen items in the car.

¶ 52 Forgette contended that the People could have established that

Forgette was driving the vehicle during the traffic stop and that the

stolen items were found after the vehicle was impounded without

introducing the unfairly prejudicial evidence of his behavior during

the traffic stop. The trial court rejected this contention.

b. Legal Principles

¶ 53 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

29
criminal episode or transaction with which the defendant is

charged.” People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). It

is “generally ‘linked in time and circumstances with the charged

crime, or forms an integral and natural part of an account of the

crime, or is necessary to complete the story of the crime for the

jury.’” Id. (quoting United States v. Williford, 764 F.2d 1493, 1499

(11th Cir. 1985)). Res gestae evidence is generally “admissible to

provide the fact-finder with a full and complete understanding of

the events surrounding the crime and the context in which the

charged crime occurred.” Id.

¶ 54 But, res gestae evidence must still pass the CRE 403

balancing test and is inadmissible if it is irrelevant or creates a

danger of unfair prejudice that substantially outweighs its probative

value. People v. Jackson, 627 P.2d 741, 744 (Colo. 1981). Unfairly

prejudicial evidence 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. Herrera, 2012 COA 13, ¶ 41 (quoting Masters, 58 P.3d at

1001).

30
¶ 55 “[W]hen reviewing a trial court’s exercise of discretion in

performing the balancing required by CRE 403, an appellate court

must afford the evidence the maximum probative value attributable

by a reasonable fact finder and the minimum unfair prejudice to be

reasonably expected.” People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995).

c. Analysis

¶ 56 Forgette asserts that the testimony related to his behavior

during the traffic stop was inadmissible under CRE 403 because it

was substantially more prejudicial than probative. We disagree.

¶ 57 To begin, like evidence of flight, the evidence of Forgette’s

evasive and obstreperous conduct during a traffic stop that

occurred shortly after the burglary — and at a time when the fruits

of that burglary were in the vehicle’s trunk — is probative of

Forgette’s consciousness of guilt. Cf. People v. Eggert, 923 P.2d

230, 235 (Colo. App. 1995) (“Evidence concerning a defendant’s

flight and efforts by police to locate and return him or her may be

relevant to show consciousness of guilt.”). The testimony about

Forgette’s conduct during the traffic stop was “linked in time and

circumstances with the charged crime” and, by shedding light on

31
his consciousness of guilt, “provide[d] the fact-finder with a full and

complete understanding of the events surrounding the crime and

the context in which the charged crime occurred.” Quintana, 882

P.2d at 1373 (quoting Williford, 764 F.2d at 1499). Thus, it was

admissible as res gestae evidence.3

¶ 58 But “even res gestae evidence is subject to exclusion under

CRE 403 if its probative value is substantially outweighed by the

dangers of unfair prejudice, confusion of the issues, or misleading

the jury.” People v. Gladney, 250 P.3d 762, 768 (Colo. App. 2010)

3 Members of our supreme court have expressed reservations about
“the continued appropriateness of the res gestae doctrine.” Zapata
v. People, 2018 CO 82, ¶ 70 (Hart, J., specially concurring) (joined
by Gabriel, J.); cf. also People v. Rojas, 2020 COA 61, ¶¶ 54-75
(urging the abandonment of the res gestae doctrine) (Furman, J.,
dissenting) (cert. granted Oct. 6, 2020). Indeed, the continuing
viability of the res gestae doctrine in Colorado is in some flux, as
the supreme court has recently granted certiorari on the issue of
“[w]hether this court should abolish the res gestae doctrine.” Rojas
v. People, (Colo. No. 20SC399, Oct. 6, 2020) (unpublished order);
see also Zapata, ¶ 70 (Hart, J., specially concurring) (suggesting
that, “in an appropriate case, [the supreme] court should consider
whether to join other jurisdictions that have abandoned the
doctrine”). Our analysis here, however, doesn’t hinge on the
availability or viability of the res gestae doctrine; indeed, even in the
absence of the res gestae doctrine, the evidence of Forgette’s
conduct during the traffic stop would be relevant under CRE 401.
And, as such, the evidence’s admission would be subject to and, for
the reasons set forth below, would survive a CRE 403 analysis.

32
(citing People v. Rollins, 892 P.2d 866, 873 (Colo. 1995)). Forgette

contends that the trial court still should’ve excluded the evidence

under CRE 403 because there was an alternative and highly

prejudicial explanation for his conduct. Specifically, he contends

that the actual reason he was uncooperative during the traffic stop

is that there were controlled substances and drug paraphernalia in

the car that he didn’t want police to find, and not because there

were stolen goods in the trunk.

¶ 59 The fact that there may have been an equally or similarly

plausible explanation for Forgette’s conduct during the traffic stop

— and that providing that alternate reason to the jury could be

prejudicial to him — didn’t bar the prosecution from presenting the

otherwise admissible evidence. To be sure, the People’s

introduction of Forgette’s conduct during the traffic stop as

evidence of his consciousness of guilt for the crime charged put

Forgette on the horns of a dilemma: providing the jury with an

alternative explanation for his obstreperous conduct would disclose

uncharged criminal conduct to the jury. But the existence of that

dilemma was a problem of his own making. And it surely didn’t

create unfair prejudice barring the evidence under CRE 403.

33
¶ 60 Simply put, the fact that there may have been more than one

explanation for Forgette’s conduct during the traffic stop didn’t

render the evidence inadmissible under CRE 403. See

Commonwealth v. Booker, 436 N.E.2d 160, 163 (Mass. 1982) (“That

there may have been other reasons for the flight presents a question

for the jury in considering the probability that the defendant fled

because of a consciousness of guilt of the crime charged in the

indictments and for which he was on trial.”).

¶ 61 As the Massachusetts Supreme Court aptly explained in

Booker,

[a]lthough the evidence explaining a possible
motive for the defendant’s flight, other than
consciousness of guilt of the crime charged in
the instant case, tended possibly to prejudice
the defendant by showing that he was involved
in other criminal activity, this factor does not
render the flight evidence inadmissible.
Evidence that tends to show consciousness of
guilt is relevant and is not rendered
inadmissible simply because it may indicate
that the defendant has committed another
offense.

Id. (emphasis added) (citations omitted); see also State v. McDaniel,

777 N.W.2d 739, 747 (Minn. 2010) (“The fact that [the defendant]

may have had another reason to avoid the police does not alone

34
render the evidence inadmissible.”); Ricks v. Commonwealth, 573

S.E.2d 266, 269 (Va. Ct. App. 2002) (“While appellant argues his

flight could have been the result of the outstanding warrants or his

possession of marijuana, these potential multiple causes for the

flight do not obviate the ‘consciousness of guilt’ nexus with the

murder.”); Langhorne v. Commonwealth, 409 S.E.2d 476, 480 (Va.

Ct. App. 1991) (A defendant “cannot avoid the inferences which the

fact finder may draw from his actions because other charges were

pending against him and he may also have been evading those

charges.”).

¶ 62 Accordingly, the trial court acted within its discretion when it

concluded that Forgette’s obstreperous conduct during the traffic

stop was relevant to his consciousness of guilt and that such

evidence wasn’t inadmissible under CRE 403 based on a potentially

prejudicial alternate explanation.

3. Cumulative Error

¶ 63 Forgette last contends that even if the alleged evidentiary

errors don’t warrant reversal separately, they do cumulatively. But

because we conclude that the trial court didn’t err, we reject

Forgette’s cumulative error contention. People v. Conyac, 2014 COA

35
8M, ¶ 152 (“The doctrine of cumulative error requires that

numerous errors be committed, not merely alleged.”).

C. Aggravated Sentence

¶ 64 Forgette contends that the trial court erred by aggravating his

sentence based on the fact that he was on felony probation at the

time of the offense because only a jury may properly find facts that

aggravate a sentence. We disagree.

¶ 65 A defendant who is on felony probation at the time of

commission of a crime is subject to sentence enhancement. § 18-

1.3-401(8)(a)(III), C.R.S. 2020.

¶ 66 In general, a sentence may only be aggravated based on facts

found by a jury beyond a reasonable doubt. See Blakely v.

Washington, 542 U.S. 296, 301 (2004); Apprendi v. New Jersey, 530

U.S. 466, 490 (2000).

¶ 67 A court may, however, aggravate a sentence based on a judge-

found fact that a defendant has a prior conviction. Lopez v. People,

113 P.3d 713, 723 (Colo. 2005). Similarly, a court may aggravate a

defendant’s sentence based on the judge-found fact that the

defendant was on probation at the time of the crime. People v.

Huber, 139 P.3d 628, 633-34 (Colo. 2006).

36
¶ 68 Here, the court found that Forgette was on felony probation

when he committed the crime in this case. Therefore, the court

didn’t err by increasing Forgette’s sentence based on that fact. See

Mountjoy v. People, 2018 CO 92M, ¶ 29 (“[T]he presence of one

Blakely-compliant or Blakely-exempt fact renders an aggravated

sentence constitutionally sound even if the sentencing judge also

considered facts that were not Blakely-compliant or Blakely-

exempt.”).

III. Conclusion

¶ 69 For the reasons set forth above, we affirm Forgette’s conviction

and sentence.

JUDGE FOX and JUDGE FREYRE concur.

37