Pearson v. People

• Court: Colorado Supreme Court
• Writing for the Court: BERKENKOTTER JUSTICE
• Citation: Pearson v. People, 2022 CO 4, 20SC463 (Colo. Feb 14, 2022)
• Docket Number: 20SC463
• Decision Date: 14 February 2022
• Parties: Thomas Pearson, Petitioner: v. The People of the State of Colorado. Respondent

2022 CO 4

Thomas Pearson, Petitioner v. The People of the State of Colorado. Respondent

No. 20SC463

Supreme Court of Colorado, En Banc

January 10, 2022

Certiorari to the District Court Arapahoe County District Court Case No. 18CV30951

Judgment Reversed

Attorneys for Petitioner: Megan A. Ring, Public Defender Andrew P. Castle, Deputy Public Defender Centennial, Colorado

Attorneys for Respondent: John Kellner, District Attorney Eighteenth Judicial District Ann B. Tomsic, Chief Deputy District Attorney Susan J. Trout, Senior Deputy District Attorney Centennial, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.

OPINION

BERKENKOTTER JUSTICE

¶1 Can a defendant charged with harassment (striking, shoving, kicking) claim self-defense as an affirmative defense? We address this issue in connection with our review of the district court's decision in People v. Pearson, No. 18CV30951 (Dist. Ct., Arapahoe Cnty., Apr. 28, 2020), affirming the county court's determination that Thomas Pearson was not entitled to a self-defense instruction, as a matter of law, with respect to his pending harassment^[1] charge. We conclude that a defendant can assert self-defense as an affirmative defense to the crime of harassment so long as there is some credible evidence to allow a reasonable jury to find that they^[2] acted with intent to alarm, as outlined in section 18-9-111(1)(a), C.R.S. (2021), as a means of self-defense. Accordingly, we reverse the district court's judgment and remand the case with instructions to return the matter to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶2 On June 1, 2017, Pearson was working as a courtesy tow-truck driver, providing roadside assistance on Interstate 225 when Timothy O'Kelly, another motorist, changed lanes and pulled in front of Pearson's vehicle. The two men testified at trial and provided very different accounts of what happened next.

¶3 According to Pearson, O'Kelly cut in front of Pearson's vehicle and flipped him off. Pearson then threw an air freshener at O'Kelly's car, which led O'Kelly to park in the middle of the highway and exit his vehicle. Pearson then parked behind O'Kelly's car, put on his hazard lights, and approached O'Kelly. Pearson testified that O'Kelly yelled and cursed as Pearson approached and that O'Kelly struck him in the face. Pearson recalled punching O'Kelly in the face one time in response but asserted that he did not use his full force.

¶4 According to O'Kelly, he merged into Pearson's lane and soon after heard Pearson's "angry" honk, to which O'Kelly responded by flipping Pearson the middle finger. O'Kelly testified that Pearson began to tailgate him, forcing O'Kelly to brake abruptly due to surrounding traffic. O'Kelly then saw and heard a metal object hit his car. Believing that Pearson threw an object at him, O'Kelly stopped and opened his car door to photograph Pearson's vehicle in order to later file a complaint. Upon seeing O'Kelly exit his vehicle, Pearson exited his own and rapidly approached while screaming expletives and making threatening statements. O'Kelly put his arms out to prevent Pearson from getting too close. After several attempts, Pearson punched O'Kelly in the face, injuring him.

¶5 Pearson was arrested at the scene and was charged with assault in the third degree, criminal mischief, and harassment.

¶6 Before trial, defense counsel notified the trial court that Pearson wanted to argue self-defense as an affirmative defense to the harassment and assault charges. As to harassment, the trial court stated:

I don't understand how you could use-when you look at the elements of how affirmative defense could be used-the affirmative defense of self-defense be used against an elemental that reads "with intent to harass, annoy, or alarm another person." The State-the jury will either find that he did or didn't do that because of the situation that he found himself in, but it's not a self-defense issue when it comes to that.

It's not something that the State should have to disprove. It's-it's really just how is the jury going to see the evidence in terms of was there intent to harass, annoy, or alarm. It-it doesn't go to the self-defense as we all think of it . . . .

[I]t doesn't compute to give an affirmative defense along with an elemental that reads that the jury would have to find that the [d]efendant acted with intent to harass, annoy, or alarm with those three things. He has to either be trying to harass, annoy, or alarm.

If he's not because he is defending himself, regardless of whether or not it's given as a self-an affirmative defense, they're not going to be able to find that.

¶7 Ultimately, the court ruled that it would not allow Pearson to use the affirmative defense of self-defense with regard to the harassment charge, finding that the intent to harass, annoy, or alarm was mutually exclusive with the intent to defend oneself. Instead, the court concluded that self-defense was an element- negating traverse to the crime of harassment that, if proven, would negate the requisite mens rea of the harassment charge. The court did, however, indicate that it would instruct the jury that self-defense was an affirmative defense to the assault charge.

¶8 At trial, Pearson took the stand in his own defense and admitted that he punched O'Kelly but stated that he did so because he "was worried [O'Kelly] was going to keep going," and that he "didn't use all [his] force." Rather, Pearson testified, he only used enough force "to make sure [O'Kelly] didn't try to push [him] again."

¶9 During the jury instruction conference, defense counsel again argued that the evidence showed that "Pearson was trying to alarm [O'Kelly] in self-defense and that's why a self-defense [affirmative defense] instruction should be given on harassment." In the alternative, due to the court's pretrial ruling, defense counsel requested an instruction stating that intent to defend oneself negates the intent to harass. The court similarly rejected that instruction, noting that such a conclusion would be "axiomatic" for the jury. Defense counsel continued his objection, arguing that, without an additional instruction, it was conceivable that a juror might vote to convict on the harassment charge while simultaneously believing that Pearson acted in self-defense.

¶10 Thus, limited by the trial court's ruling, defense counsel argued the element- negating traverse, noting during closings that the prosecution "charged [Pearson] . . . with the intent to harass, annoy, or alarm. But we know that that was not Mr. Pearson's intent. He told you, [he] was defending [himself] . . . ." The jury returned a verdict acquitting Pearson of the assault in the third degree and criminal mischief charges but convicting him of harassment.

¶11 Pearson appealed to the district court, arguing that the trial court erred by ruling that self-defense was not an affirmative defense to harassment and by failing to properly instruct the jury. Pearson additionally argued that even if the trial court was correct in ruling that self-defense was an element-negating traverse, it still erred by failing to instruct the jury on the traverse pursuant to section 18-1-704(4), C.R.S. (2021).

¶12 The district court agreed with the trial court that Pearson could not simultaneously claim that he struck O'Kelly to both defend himself and alarm O'Kelly. In the district court's view, the ultimate result that Pearson was seeking under the circumstances could not have been to alarm O'Kelly. Consequently, the district court reasoned that "he cannot both assert that he acted in self-defense and admit the elements of the harassment charge, something that is a necessity in affirmative defenses." In reaching this conclusion, the district court stated that it "believe[d] that 'objective' or 'intent' in the context of [the harassment statute] means the main or ultimate objective or intent." The district court additionally held that the trial court was not required to provide a traverse instruction for the harassment charge because traverses generally do not require their own instructions unless the mens rea includes recklessness, criminal negligence, or extreme indifference. The district court thus affirmed the trial court's judgment.

¶13 We subsequently granted Pearson's petition for certiorari.^[3]

II. Analysis

¶14 We begin by outlining the applicable standard of review. Next, we discuss the distinction between affirmative defenses and traverses and their respective burdens of proof. Then we address the statute and case law related to the charge of harassment and discuss what is required for a defendant to assert a claim of self-defense as an affirmative defense. We conclude by applying the law to the particular facts of the case before us.

A. Standard of Review

¶15 "Trial courts have a duty to instruct the jury on all matters of law applicable to the case." Roberts v. People, 2017 CO 76, ¶ 18, 399 P.3d 702, 704-05. And "[w]e review jury instructions de novo to determine whether the instructions accurately informed the jury of the governing law." Id. at ¶ 18, 399 P.3d at 705. We must consider all the instructions provided by the trial court, together, to determine whether it properly advised the jury. People v. DeGreat, 2018 CO 83, ¶ 15, 428 P.3d 541, 544.

¶16 In order to present an affirmative defense for the jury to consider, a defendant must offer "some credible evidence" to support the claimed defense. § 18-1-407(1), C.R.S. (2021); People v. Garcia, 113 P.3d 775, 783-84 (Colo. 2005). Whether a defendant has met this burden is a question of...