People v. Mosely

• Decision Date: 12 September 2019
• Docket Number: Court of Appeals No. 16CA0218
• Citation: 487 P.3d 1157
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clarence MOSELY, Defendant-Appellant.
• Court: Colorado Court of Appeals

487 P.3d 1157

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Clarence MOSELY, Defendant-Appellant.

Court of Appeals No. 16CA0218

Colorado Court of Appeals, Division I.

Announced September 12, 2019

Rehearing Denied October 24, 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

Opinion by JUDGE TAUBMAN

¶ 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, 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,

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 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. Griego v. People , 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." 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).

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, 488 P.3d 186, 192 ("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 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

...