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
September 12, 2019
2019COA143
No. 16CA0218, People v. Mosely — Criminal Law — Juries —
Unanimity — Jury Instructions — Defense of Person;
Affirmative Defenses — Self-Defense; Constitutional Law — Due
Process
A division of the court of appeals considers whether a jury
must unanimously decide which element of self-defense the
prosecution disproved beyond a reasonable doubt. The division
concludes it must, based on Colorado law granting defendants the
right to a unanimous jury instruction. § 16–10–108, C.R.S. 2018.
It reasons that, by not requiring the jury to agree on which
element of self-defense the prosecution disproved, the trial court
impermissibly lowers the prosecution’s burden of proof and leaves
open the possibility of a conviction based on competing theories of
the law. The division concludes that, because this violates a
defendant’s right to due process of law, such an error is not
harmless beyond a reasonable doubt.
COLORADO COURT OF APPEALS 2019COA143
Court of Appeals No. 16CA0218
Arapahoe County District Court No. 15CR499
Honorable Carlos A. Samour, Jr., Judge
Honorable Elizabeth Beebe Volz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Clarence Mosely,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Hawthorne and Grove, JJ., concur
Announced September 12, 2019
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
¶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
1
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.
1 The self-defense instruction also pertained to a charge of first
degree assault for which Mosely was acquitted; it did not apply to
the second degree assault charge of which he was convicted.
However, for the first time in the reply brief, defense counsel asserts
that the jury instructions and response to the question also
impacted Mosely’s second degree assault conviction. We do not
address arguments raised for the first time in a reply brief. See
People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990).
2
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
3
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, the prosecution must
disprove, beyond a reasonable doubt, at least
one of the above numbered conditions . . . .
(Emphasis added.)
¶7 The court also provided the jury with other instructions, as
well as the standard unanimity instruction, which stated in part:
The verdict for each charge must represent the
considered judgment of each juror, and it must
be unanimous. In other words, all of you must
agree on all parts of it. This requirement also
applies to any determination that you make in
response to a verdict question which you
conclude should be answered.
¶8 During deliberations, a juror submitted a question to the
court, asking,
4
With regard to [the self-defense instruction],
[do] we have to unanimously agree on at least
one of the factors, e.g. #1[,] or do we need to
unanimously agree that individually at least
one of the factors 1-4 was disproved[?]
The trial court discussed the question with defense counsel
and the prosecutor. Over defense counsel’s objection, the trial
court responded to the juror’s question as follows:
Dear Members of the Jury, . . . . In order for
you to decide that the prosecution has met its
burden of proof with respect to the affirmative
defense of defense of person or self-defense,
you have to unanimously agree that the
prosecution has disproven at least one of the
numbered conditions. However, there is no
requirement that you unanimously agree on
which numbered condition or conditions have
been disproven.
B. Standard of Review
¶9 We review jury instructions and a court’s response to juror
questions de novo to determine whether, as a whole, they
accurately informed the jury of the governing law. Riley v. People,
266 P.3d 1089, 1092-93 (Colo. 2011). Whether and how to answer
a juror’s question lie within the trial court’s discretion, and we do
not reverse absent a determination that the trial court abused its
5
discretion. People v. Gwinn, 2018 COA 130, ¶ 31,
428 P.3d 727,
735.
C. Applicable Law
¶ 10 The prosecutor must prove beyond a reasonable doubt every
element of a charged offense. People v. Griego, 19 P.3d 1, 7 (Colo.
2001). A defendant asserting an affirmative defense does not deny
the commission of the charged offense; rather, he or she concedes
committing the charged act but claims legal justification in doing
so, given the circumstances. Roberts v. People,
2017 CO 76, ¶ 20,
399 P.3d 702, 705. In Colorado, the court treats the defense as
another element of the charged offense. People v. Garcia,
113 P.3d
775, 784 (Colo. 2005).
¶ 11 When a defendant presents sufficient evidence to raise an
affirmative defense, the prosecutor must prove not only that the
defendant committed the charged offense, but also the nonexistence
of the affirmative defense. People v. Reed,
932 P.2d 842, 844 (Colo.
App. 1996). If the prosecution does not disprove the affirmative
defense beyond a reasonable doubt, the defendant is “exempt from
criminal responsibility for the consequences of the conduct.”
6
Roberts, ¶ 20, 399 P.3d at 705 (quoting People v. Huckleberry,
768
P.2d 1235, 1239 (Colo. 1989)).
¶ 12 As relevant here, self-defense is an affirmative defense to
felony menacing under section 18-3-206, C.R.S. 2018. See Riley,
266 P.3d at 1093. Colorado law entitles a defendant to a
unanimous jury verdict and due process of law. See Colo. Const.
art. II, § 25; § 16-10-108, C.R.S. 2018; Crim. P. 31(a)(3); Griego,
19
P.3d at 7. “Unanimity means only that each juror agrees that each
element of the crime charged has been proved to that juror’s
satisfaction beyond a reasonable doubt.” People v. Linares-Guzman,
195 P.3d 1130, 1134 (Colo. App. 2008).
¶ 13 To facilitate a jury’s decision-making, the trial court is
obligated to clarify any confusion the jury expresses regarding any
element of the offense charged or law bearing on the defendant’s
innocence or guilt. Leonardo v. People,
728 P.2d 1252, 1256 (Colo.
1986). “When a jury inquires about the meaning of a particular
instruction, the court should provide a supplemental instruction
sufficient to clarify the jury’s uncertainty.” People v. Harding,
17
P.3d 183, 186 (Colo. App. 2000).
7
D. Analysis
¶ 14 As noted, the prosecution must prove every element of an
offense beyond a reasonable doubt, and self-defense must be
treated as an additional element to be disproved.
¶ 15 While the jury must unanimously agree on all elements of a
crime, it is not required to unanimously agree on the evidence or
theory by which a particular element is established. People v.
Palmer, 87 P.3d 137, 140 (Colo. App. 2003); see also People v.
Davis,
2017 COA 40M, ¶ 21, ___ P.3d ___, ___ (“Though the
prosecution alleged numerous overt acts in furtherance of the single
conspiracy, that did not require unanimous agreement by the jurors
as to the precise overt act defendant committed.”).
¶ 16 Though no Colorado court has addressed the specific issue
before us, our jurisprudence reveals that, to establish a self-defense
exception — such as mutual combat or provocation — the
prosecution must prove the elements of the exception beyond a
8
reasonable doubt. 2 See Kaufman v. People, 202 P.3d 542, 561
(Colo. 2009) (detailing the prosecution’s burden to prove mutual
combat as an exception to self-defense). Similarly, in People v. Rios,
2014 COA 90, ¶ 51,
338 P.3d 495, 504, a division of this court held,
in considering the combat-by-agreement exception to self-defense,
that
a combat-by-agreement instruction that does
not state the elements that must be
established or that the prosecution has the
burden to prove these elements beyond a
reasonable doubt is erroneous because it does
not adequately inform the jury how to apply
the statutory exception to the facts of the case.
¶ 17 In this regard, People v. Silva, 987 P.2d 909 (Colo. App. 1999),
is instructive. There, as here, the division considered the
provocation and initial aggressor exceptions to self-defense. The
division explained that under section 18-1-704(3)(a), C.R.S. 2018,
“a defendant’s assertion of self-defense is lost if he or she acted with
intent to provoke the victim into attacking first in order to provide
2In some instances, the prosecution must prove the existence of an
exception to self-defense to carry its burden to disprove self-defense
beyond a reasonable doubt.
9
the defendant with the excuse to injure or kill the defendant.” Id. at
914. Significantly, the division added, “[i]n contrast to the initial
aggressor limitation, the provocation limitation applies in situations
where the defendant was not the initial aggressor.”
Id. Because the
Silva division concluded that no evidence showed that the
defendant intended to provoke the victims or their friend, it held
that giving the provocation instruction to the jury constituted
reversible error.
¶ 18 Accordingly, when the division considered the propriety of
instructing the jury on the initial aggressor instruction to
self-defense, it did not need to address the issue presented here —
whether jurors can be instructed on both the provocation and initial
aggressor exceptions to self-defense without a requirement that
they unanimously agree on one of those exceptions.
¶ 19 First, we conclude that absent the juror question here, the
unanimity instruction given to the jurors was sufficient to advise
them that they had to agree unanimously as to the applicability of
either the provocation or initial aggressor exception to self-defense.
Based on the unanimity instruction, the jurors also could have
10
concluded that neither exception applied, but that the prosecution
had disproved beyond a reasonable doubt one or both of the first
two elements of the self-defense instruction. That is, without
reaching the self-defense exceptions, the jurors could have
concluded that Mosely (1) did not use physical force to defend
himself from what he reasonably believed to be the use or imminent
use of unlawful physical force by another person, or (2) did not use
a degree of force which he reasonably believed to be necessary to
defend himself.
¶ 20 We reach this conclusion because the unanimity instruction
told the jurors that “all of you must agree on all parts of it.” We
interpret this to mean that absent the juror’s question, the jurors
would be required to unanimously agree as described above.
Nevertheless, because the trial court answered the juror’s question
in a manner that conflicted with the unanimity instruction, some
jurors might have concluded that the provocation exception applied,
while others concluded that the initial aggressor instruction
applied. This was improper.
11
¶ 21 In determining whether jurors must be instructed that they
must unanimously agree on one of these exceptions, we consider
significant the Silva division’s observation that the provocation
exception to self-defense applies when the defendant was not the
initial aggressor. This statement implies that the provocation and
initial aggressor exceptions are mutually exclusive.
¶ 22 That these exceptions to self-defense are mutually exclusive is
supported by examination of section 18-1-704(3), which sets forth
three exceptions to self-defense — provocation, initial aggressor,
and mutual combat. 3 These exceptions are set forth in the
disjunctive, indicating that only one of them must be satisfied for
the prosecution to disprove the self-defense exception.
¶ 23 Accordingly, we conclude that the prosecution did not
establish beyond a reasonable doubt that the jurors unanimously
agreed as to how the prosecution disproved the affirmative defense
of self-defense. Our conclusion is supported by case law in a
3Because the mutual combat exception is not involved here, we
need not determine whether it and the other two exceptions are
mutually exclusive.
12
related context that while factually inconsistent verdicts are
permissible, when a defendant is convicted of two or more crimes
with legally and logically inconsistent elements, the verdicts should
not be sustained. See People v. Frye, 898 P.2d 559, 569 n.13 (Colo.
1995); People v. Delgado,
2016 COA 174, ¶¶ 15-16,
410 P.3d 697,
700 (cert. granted Dec. 11, 2017).
¶ 24 Nevertheless, the People urge us to adopt the reasoning of the
Court of Appeals of Texas in Harrod v. State,
203 S.W.3d 622, 628
(Tex. App. 2006), in which the court held that “the jury is not
required to agree unanimously on the specific component of
self-defense on which it is not persuaded.” However, Texas’
self-defense statute differs significantly from Colorado’s: Texas
treats self-defense as a justification, not an affirmative defense.
Tex. Penal Code Ann. § 9.31 (West 2007).
¶ 25 Texas law requires a defendant to prove an affirmative defense
by a preponderance of the evidence, and the state “has a burden
requiring it to prove its case beyond a reasonable doubt.” Harrod,
203 S.W.3d at 627. “A jury verdict of guilty is an implicit finding
rejecting the defendant’s self-defense theory.”
Id. Thus, a
13
defendant’s assertion of self-defense in Texas legally operates more
like a traverse operates in Colorado.
¶ 26 Under Colorado law, a traverse “effectively refutes the
possibility that the defendant committed the charged offense by
negating one or more elements of that offense.” Roberts, ¶ 21, 399
P.3d at 705. When evidence presented raises the issue of a
traverse, “‘the jury may consider the evidence in determining
whether the prosecution has proven the element implicated by the
traverse beyond a reasonable doubt’ . . . [and] proof beyond a
reasonable doubt of the element implicated by the traverse, by
definition, disproves the traverse.” Id. at ¶ 22,
399 P.3d at 705
(citation omitted).
¶ 27 Conversely, when self-defense is used as an affirmative
defense in Colorado, “[d]isproving the existence of self-defense
becomes an additional element of the offense that the prosecution
has to disprove beyond a reasonable doubt.” Castillo v. People,
2018 CO 62, ¶ 39,
421 P.3d 1141, 1148. Thus, unanimity on each
element of a traverse is unnecessary, as the Texas court
14
determined, because a guilty verdict implicitly rejects self-defense
under Texas law.
¶ 28 Accordingly, we conclude that the trial court abused its
discretion in permitting the prosecution to prove felony menacing
without instructing the jury that it must unanimously agree on
which exception to self-defense it relied.
¶ 29 However, our analysis does not end here. Since the error is of
constitutional magnitude, the constitutional harmless error
standard of reversal applies. We reverse the trial court’s judgment
unless we are confident beyond a reasonable doubt that the error
did not contribute to the conviction. Bernal v. People, 44 P.3d 184,
200 (Colo. 2002). Although the People argue that the instructional
error was harmless beyond a reasonable doubt, we disagree.
¶ 30 As the juror’s question suggests, some jurors may have
believed Mosely was the initial aggressor, while others may have
believed that he goaded members of the bachelor party into fighting
with him. Accordingly, we conclude that the trial court’s answer to
the juror’s instruction was not harmless beyond a reasonable doubt
and the jury’s menacing conviction cannot stand.
15
E. Instructions on Remand
¶ 31 On retrial, provided that the same or similar evidence is
presented, the trial court may instruct the jurors on self-defense
and must give the standard unanimity instruction. The jurors may
also be instructed regarding the self-defense exceptions of
provocation and initial aggressor. However, if the prosecution
argues the applicability of both exceptions, the trial court in its
discretion may also provide the jurors with special verdict forms
indicating whether they unanimously agree that the prosecution
disproved one exception or the other or neither. The trial court may
also give special verdict forms on the first two elements of self-
defense, whether Mosely reasonably believed physical force was
necessary and whether he used a degree of force which he
reasonably believed was necessary under the circumstances.
III. Res Gestae Evidence
¶ 32 Mosely contends that the trial court erred in admitting as res
gestae evidence an incident that took place inside the strip club
before the altercation at issue. Because this issue applies to
16
Mosely’s second degree assault conviction and may arise on retrial
of the felony menacing charge, we address it now. We disagree.
A. Relevant Facts
¶ 33 Over Mosely’s objection, the trial court admitted evidence of
his conduct inside the strip club as res gestae evidence of the
charged offenses. The prosecutor’s offer of proof explained that an
initial altercation inside the strip club caused by Mosely “being rude
or hitting on a female patron who happened to be the wife of
another patron” provided context for the charged crimes. The
prosecutor supported this explanation by asserting that, after the
altercation, security personnel asked Mosely to leave the club, and
he became confrontational and aggressive. Moreover, Mosely told
detectives that he believed the bachelor party was the same group
he confronted inside the strip club. The prosecutor argued that,
because Mosely believed the incidents were related and his
aggression — though not physical — was similar to the aggression
exhibited toward the bachelor party, the evidence was res gestae.
17
¶ 34 The trial court agreed with the prosecutor’s arguments,
concluding that Mosely’s conduct in the strip club contextualized
the altercation in the parking lot.
B. Standard of Review
¶ 35 We affirm a trial court’s evidentiary rulings absent an abuse of
discretion. People v. Zapata, 2016 COA 75M, ¶ 37,
443 P.3d 78, 84,
aff’d,
2018 CO 82,
428 P.3d 517. We only discern an abuse of
discretion where the trial court rendered a manifestly arbitrary,
unreasonable, or unfair decision, or it misapplied the law. People v.
Jefferson,
2017 CO 35, ¶ 25,
393 P.3d 493, 498-99.
C. Applicable Law
¶ 36 We review the admissibility of relevant res gestae evidence
assuming the maximum probative value of the evidence and the
minimum unfair prejudice reasonably expected by its introduction.
People v. Gladney, 250 P.3d 762, 768 (Colo. App. 2010). When, as
here, a defendant has preserved an objection to the admission of
evidence, we review for harmless error. See Yusem v. People,
210
P.3d 458, 469 (Colo. 2009); People v. Reed,
2013 COA 113, ¶ 32,
338 P.3d 364, 370. Under this standard, the prosecution must
18
prove that any error did not affect the defendant’s substantial
rights. James v. People, 2018 CO 72, ¶¶ 18-19,
426 P.3d 336,
340-41.
¶ 37 Res gestae evidence is
matter incidental to the main fact and
explanatory of it, including acts and words
which are so closely connected therewith as to
constitute a part of the transaction, and
without a knowledge of which the main fact
might not be properly understood. They
are . . . the circumstances, facts and
declarations which grow out of the main fact,
are contemporaneous with it and serve to
illustrate its character.
Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991) (quoting
Martinez v. People,
55 Colo. 51, 53-54,
132 P. 64, 65 (1913)). Trial
courts may admit res gestae evidence to provide context and a fuller
understanding of the conditions attendant to the charged crime.
People v. Quintana,
882 P.2d 1366, 1373 (Colo. 1994). It is
generally so intertwined with the time and circumstances of the
offense that its exclusion would leave a void in the account.
Id.
However, res gestae evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
19
confusion of the issues, or misleading the jury. See CRE 403;
Gladney, 250 P.3d at 768.
D. Prior Incident
¶ 38 Mosely’s belief that the bachelor party members who entered
the parking lot after leaving the strip club were related to the group
he encountered inside the strip club supports the trial court’s
ruling. Importantly, the two incidents were estimated to have taken
place between ten and twenty minutes apart, and the evidence was
relevant to establish the character of Mosely’s actions. See
Quintana, 882 P.2d at 1374. Thus, evidence of his aggression,
though not physical, toward the group inside the strip club could
reasonably be expected to aid the jury’s understanding of the
circumstances surrounding the charged offenses. For instance, it
explained why Mosely left the strip club and gave the jury some idea
of why he verbally confronted the bachelor party members in the
parking lot.
E. Racial Animus
¶ 39 Mosely contends that the court erred in allowing testimony
describing the altercation in the club as occurring between two
20
black men and a group of “Latin gentlemen and females.” He
argues that such evidence was not res gestae and, instead, injected
racial bias in order to gain traction with the jury. We disagree.
¶ 40 On appeal, Mosely contends that the “focus on [Mosely], who
is African American, ‘coming on’ to a group of married women not of
his race harkened back to the historically-rooted animus toward
black men relating to nonblack women.” However, the People point
out that the prosecutor did not highlight racial differences between
the groups in opening or closing arguments and, instead, relied on
the description only to identify the parties involved in the incident. 4
¶ 41 We note that Mosely rests his argument on a mistaken
premise, asserting that the above testimony was an appeal to racial
prejudice. However, the present case does not parallel the
circumstances presented in People v. Robinson, 2017 COA 128M,
¶ 17, __ P.3d___, ___ (cert. granted, June 11, 2018), in which a
division of our court concluded that “the prosecutor’s words
4 We recognize that while these terms were used to identify the two
groups, they are not necessarily accurate. Some Hispanic
individuals are also black, and other Hispanics may appear to be
white.
21
invoked some of the most damaging historical racial stereotypes”
when the prosecutor said,
You’re going to hear that [one of the victims,
A.M.,] is white. And she’s actually pretty
pasty. She’s pasty white. And you obviously
have seen Mr. Robinson is dark. He is an
African American of dark complexion. [The
other victim, E.G.,] looks over and she can see
a dark penis going into a white body. That’s
how graphic she could see [sic].
Id. at ¶ 1, ___ P.3d at ___.
¶ 42 In any event, the brief testimony concerning race only
identified the parties involved in the incident inside the strip club.
Importantly, the prosecutor did not embellish the eyewitnesses’
racial identification during opening or closing statements. Nor did
the prosecutor suggest any racial bias in two black males “hitting
on” females of another race. Therefore, we cannot conclude that the
jury could have perceived the witnesses’ testimony as provoking
racial animus.
¶ 43 We conclude that any probative value in admitting testimony
identifying the races of the parties involved in the initial incident
was not substantially outweighed by any prejudicial effect.
22
IV. Conclusion
¶ 44 Accordingly, the judgment for felony menacing is reversed, the
second degree assault conviction is affirmed, and the case is
remanded for a new trial on the conviction for felony menacing.
JUDGE HAWTHORNE and JUDGE GROVE concur.
23
