dissent">STERNBERG, Judge,

dissenting:

I do not agree with the conclusion reached by the majority opinion that defendant was entitled to an instruction on self-defense. My view is based on the language of the controlling statute, § 18-1-704(8), C.R.S.1978 (1978 Repl. Vol. 8), which provides that:

"[A] person is not justified in using physical force if:

(a) with intent to cause physical injury or death to another person he provokes the use of unlawful physical force by that other person; or

(b) he is the initial aggressor ...." (ém— phasis supplied)

Defendant started the verbal abuse by calling Driscoll a "white honky bitch." When Driscoll entered the service station, defendant followed her in. He tapped her on the shoulder, the first physical contact between the two, to which Driscoll responded with a racial slur. The second physical contact then occurred when he slapped her face. Because Driscoll's involvement occurred only thereafter, I would hold as a matter of law, that defendant was not entitled to an instruction on the right of self-defense because he was the initial aggressor under subparagraph (b) of the quoted statute. And, in any event, by tapping her shoulder and slapping her face he had provoked Driscoll's later responses under the meaning of subparagraph (a) above.

The majority reasons that a jury could have concluded the initial altercation had subsided and could have found there was a break in the action following which Driscoll assaulted defendant. To accept this reasoning would mean that in any assault in which the victim fights back, we must stop the action at some point beneficial to the accused and say that a jury could decide one incident had ended and a second was beginning-with a blow being struck by the victim. To me, this unduly extends the right of self-defense to situations where the statute precludes its use.

I would affirm this conviction.

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