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People v. Mosely

Court of Appeals of Colorado, First Division

September 12, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Clarence Mosely, Defendant-Appellant.

          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, ...

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