People v. Whatley, 98CA2085.

• Docket Nº: No. 98CA2085.
• Citation: 10 P.3d 668
• Case Date: February 17, 2000
• Court: Court of Appeals of Colorado

10 P.3d 668

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Thomas WHATLEY, Defendant-Appellant

No. 98CA2085.

Colorado Court of Appeals, Div. IV.

February 17, 2000.

Rehearing Denied April 27, 2000.

Certiorari Denied October 10, 2000.

10 P.3d 669

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, David B. Bush, Special Assistant Attorney General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Gradisar, Trechter, Ripperger, Roth, David A. Roth, Pueblo, Colorado, for Defendant-Appellant.

Opinion by Judge PIERCE¹

Defendant, Thomas Whatley, appeals a judgment of conviction entered on the jury verdict finding him guilty of second degree assault on a police officer performed upon a sudden heat of passion. We affirm.

Defendant was a passenger in an automobile whose driver had been pulled over by police for suspicion of driving under the influence of alcohol. After the car had been stopped for some time, defendant exited the vehicle and began to walk away.

A police officer recognized defendant as an individual wanted by police on an unrelated matter. According to defendant's testimony

10 P.3d 670

at trial, the police officer then tackled him from behind and arrested him. However, the police officer contended that defendant initiated an attack on the officer before his arrest. Both were injured during the arrest

Defendant was charged with second degree assault on a peace officer. A jury found him guilty of this charge, but determined he had acted upon a sudden heat of passion which reduced the crime from a class 4 to a class 6 felony.

I.

Defendant first contends the trial court erred in refusing to give his tendered instruction on the affirmative defense of self-defense. We disagree.

Section 18-3-203(1)(c), C.R.S.1999, states that a person is guilty of the crime of second degree assault on a peace officer when:

With intent to prevent one whom he or she knows, or should know, to be a peace officer or firefighter from performing a lawful duty, he or she intentionally causes bodily injury to any person. . . .

Section 18-1-704, C.R.S.1999, provides the affirmative defense of self-defense. It states in relevant part:

a person is justified in using physical force upon another person in order to defend himself . . . from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person.

An affirmative defense is a defense that admits conduct leading to the act charged but seeks to justify, excuse, or mitigate that conduct. People v. Huckleberry, 768 P.2d 1235 (Colo.1989); People v. Reed, 932 P.2d 842 (Colo.App.1996).

The quantum of evidence that must appear in the record in order to warrant an instruction on an affirmative defense is "some credible evidence." People v. Saavedra-Rodriguez, 971 P.2d 223 (Colo.1998). That evidence may come from any source, even from the prosecution. See Case v. People, 774 P.2d 866 (Colo.1989). However, it is not error for a trial court to reject a defendant's proposed affirmative defense instruction if it is not grounded in, and supported by, the evidence. People v. Lucas, 992 P.2d 619 (Colo.App.1999).

Here, the prosecution's evidence established that, during an arrest, defendant assaulted and injured a known police officer.

Defendant elected to testify in his own defense. He specifically denied that he had struck the officer during the arrest. Again in cross-examination, he denied ever hitting, pushing, or kicking the police officer. At the close of the proceedings, the trial court refused to give defendants tendered instruction on self-defense.

As defendant's testimony indicates, he did not admit to having engaged in the conduct which led to the charge and then offer self-defense as justification for his action. Instead, defendant twice denied that he had committed any assault upon the officer. Cf. People v. Huckleberry, supra. ("[T]he essence of an affirmative defense is the admission of the conduct giving rise to the charged offense."). Defendant, when given an opportunity, offered no evidence of self-defense.

While the defendant stated that he had "wrestled around" with the officer, and had "pushed toward" the officer, we can not conclude that these comments amounted to an admission that defendant by his conduct he caused injury to the officer. See § 18-3-203(1)(c), C.R.S.1999. Nor is there any evidence in the record that he defended himself because he reasonably believed that unlawful force...