Colorado’s second-highest court reversed a defendant’s convictions for murder and aggravated robbery earlier this month, finding that a Jefferson County judge allowed evidence that improperly suggested the man had “bad character” for possessing guns generally.

Under the rules for criminal cases, evidence cannot be used to prove a defendant has bad character, and they acted in accordance with that character in committing an offense.

At the trial of Gemini Elijah Garcia, prosecutors were allowed to reference evidence showing Garcia had guns or was interested in acquiring guns in the weeks and months before a fatal shooting that occurred during a robbery. Jurors also heard that Garcia possessed a handgun after police arrested him days later, although there was no direct evidence Garcia had that gun — or any gun — during the robbery.

A three-judge Court of Appeals panel concluded that the evidence of Garcia’s firearm possession served to paint him as “the sort of person who would aid and abet a robbery,” but was not proof of the crime itself.

“Moreover, the trial court acknowledged that all the gun photos and messages presented the ‘danger of propensity’ — that their admission into evidence could result in Garcia’s conviction for aggravated robbery based on an improper inference that he has a bad character,” wrote Judge Lino S. Lipinsky de Orlov in the May 7 opinion.

On Oct. 12, 2022, Garcia was at the apartment of Jessie Vargas-Vigil. Vargas-Vigil had arranged to purchase marijuana from the victim. Garcia and Vargas-Vigil went out to the parking lot to meet the victim. Vargas-Vigil got in the vehicle while Garcia stood at the driver’s door.

There was a single gunshot, which killed the victim. Garcia and Vargas-Vigil ran away holding various items.

Law enforcement arrested the men and prosecutors charged Garcia with aggravated robbery and felony murder, which did not require him to have pulled the trigger to be found guilty.

To convict Garcia of aggravated robbery, the prosecution had to prove, among other things, that Garcia was armed with a deadly weapon. At trial, prosecutors introduced:

• June 6 pictures from Facebook of Garcia holding a gun
• a Sept. 24 picture from Facebook of Garcia holding a gun
• a Sept. 27 chat, in which someone offered a handgun for sale with Garcia responding, “I’d buy it”
• the fact that when police arrested Garcia days after the Oct. 12 killing during an unrelated traffic stop, he had a handgun on him

Then-District Court Judge Robert Lochary allowed the various pieces of gun evidence, and instructed the jurors that they were to use it “for the purpose of determining if the defendant was armed on the date of offense only.”

In closing argument, the prosecutor reminded jurors that Garcia had possessed a gun on three separate occasions and expressed interest in buying a gun on a fourth occasion.

“It certainly suggests this defendant was armed the day he went to rob (the victim),” said the prosecutor.

Jurors found Garcia guilty and he received a 44-year prison sentence.

On appeal, Garcia’s attorney argued he only had accompanied Vargas-Vigil to a drug purchase. To convict him, the prosecution needed to demonstrate he had a gun, and the circumstantial evidence from other dates was the only path.

“The evidence showed he liked to possess guns and had access to a gun,” said Lipinsky during oral arguments. “Here, wasn’t the evidence sufficient to show, even if he didn’t own a gun, Mr. Garcia knew where to find them? Liked them? And was photographed with them?”

“We just don’t know anything about those particular weapons. We can’t even link the weapon that was found on him when he was arrested to any of the weapons in the Facebook photos that might suggest continuous possession,” responded public defender Robin Rheiner.

Meanwhile, Lipinsky asked the government to point to any case where the only evidence that a defendant possessed a gun during a robbery was from days or weeks in the future or past.

“Isn’t it certainly more than just a possibility that the jury convicted Mr. Garcia because it concluded he was a bad guy who walked around with guns?” he pressed.

Ultimately, the panel agreed with Garcia that the evidence of his gun possession at various points, none of which was linked to any firearm used during the robbery itself, should not have been admitted at trial.

“As the trial court noted, there was ‘scant’ evidence that Garcia was armed with a deadly weapon during the robbery — only the social media evidence and the fact he possessed a gun when arrested supported the ‘armed with a deadly weapon’ element of aggravated robbery,” wrote Lipinsky. The information created a “risk that, after viewing the evidence, the jury would convict Garcia because of a perceived bad character.”

The panel ordered a new trial.

The case is People v. Garcia.