Arapahoe County District Court No. 15CR499 Honorable Carlos
A. Samour, Jr., Judge Honorable Elizabeth Beebe Volz, Judge
Philip
J. Weiser, Attorney General, Gabriel P. Olivares, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Meredith E.
O'Harris, Deputy State Public Defender, Denver, Colorado,
for Defendant-Appellant
OPINION
TAUBMAN JUDGE.
¶
1 Defendant, Clarence Mosely, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
second degree assault and felony menacing. He contends that
the district court violated his right to due process when, in
response to a juror's question, it erroneously instructed
the jurors that they need not unanimously agree on the basis
on which the prosecution disproved Mosely's affirmative
defense of self-defense. Because we agree with that
contention, we reverse his felony menacing conviction and
remand to the district court for a new trial. However, we
affirm the conviction for second degree assault because the
instruction did not apply to that charge and Mosely's
other convictions fail.
I.
Background
¶
2 Police officers removed Mosely from Shotgun Willie's, a
strip club in Glendale, Colorado, in February 2015 after he
exhibited confrontational and aggressive behavior toward
other patrons.
¶
3 Ten to twenty minutes after his ejection from the premises,
around 1 a.m., the victim, T.K., and a group of men
celebrating a bachelor party encountered Mosely in the
parking lot as they left the strip club to board their party
bus. After an aggressive verbal exchange between Mosely and
another member of the party, T.K. intervened, and a physical
altercation erupted. During the fight, Mosely stabbed T.K. in
the abdomen with a small folding knife. Members of the party
restrained and purportedly hit Mosely until off-duty law
enforcement officers inside the strip club gained control of
the situation. T.K. was transported to a nearby hospital.
II.
Jury Instructions
¶
4 Mosely asserts that the trial court erred in answering a
juror's question by explaining that the jury need only
unanimously agree that the prosecution disproved beyond a
reasonable doubt at least one of the exceptions to
self-defense to felony menacing;[1] it need not agree which of
the exceptions was disproved. We agree and conclude that the
error was not harmless beyond a reasonable doubt.
A.
Relevant Facts
¶
5 The trial court instructed the jury on the elements of the
offense of menacing:
The elements of the crime of Menacing, as charged in this
case, are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place
charged,
3. knowingly,
4. by any threat or physical action,
5. placed or attempted to place another person in fear of
imminent serious bodily injury,
6. and that the defendant's conduct was not legally
authorized by the affirmative defense [of self-defense] in
Instruction No. 17.
After considering all the evidence, if you decide the
prosecution has proven each of the elements beyond a
reasonable doubt, you should find the defendant guilty of
Menacing . . . .
¶
6 The court also instructed the jury on self-defense:
The evidence presented in this case has raised the
affirmative defense of "defense of person" or
"self-defense," as a defense to . . . Menacing. The
defendant was legally authorized to use physical force upon
another person without first retreating if:
1. he used that physical force in order to defend himself or
a third person from what he reasonably believed to be the use
or imminent use of unlawful physical force by that other
person, and
2. he used a degree of force which he reasonably believed to
be necessary for that purpose, and
3. he did not, with intent to cause bodily injury or death to
another person, provoke the use of unlawful physical force by
that other person, and
4. he was not the initial aggressor, or, if he was the
initial aggressor, he had withdrawn from the encounter and
effectively communicated to the other person his intent to do
so, and the other person nevertheless continued or threatened
the use of unlawful physical force. The prosecution has the
burden to prove, beyond a reasonable doubt, that the
defendant's conduct was not legally authorized by this
defense. In order to meet this burden of proof, ...