v. Roberts-Bicking , 2021 COA 12 ( 2021 )

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
February 11, 2021
2021COA12
No. 17CA1396, People v. Roberts-Bicking — Criminal Law —
Juries — Unanimity — Jury Instructions — Defense of Person;
Affirmative Defenses — Self-Defense; Constitutional Law — Due
Process
A division of the court of appeals holds that a jury need not
unanimously agree on which exception to self-defense —
provocation or initial aggressor — has been proven by the
prosecution, disagreeing with another division’s holding in People v.
Mosely, 2019 COA 143 (cert. granted Mar. 30, 2020).
COLORADO COURT OF APPEALS 2021COA12
Court of Appeals No. 17CA1396
Arapahoe County District Court No. 15CR1562
Honorable F. Stephen Collins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Philo Roberts-Bicking,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur
Announced February 11, 2021
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Philo Roberts-Bicking, appeals the judgment of
conviction entered on jury verdicts finding him guilty of attempted
second degree murder, first degree assault, and menacing. To
resolve his appeal, we must determine whether the trial court, when
instructing the jury regarding Roberts-Bicking’s claim of
self-defense, was required to specifically instruct them on principles
regarding multiple assailants or apparent necessity. We must also
address whether a jury must unanimously agree on which
exception to self-defense the prosecution has proven.
¶2 We conclude that the instructions here sufficiently informed
the jury regarding all applicable principles of self-defense — and
only those principles applicable to this case — including the jury’s
obligation to consider the totality of the circumstances. We further
conclude, disagreeing with another division of this court in People v.
Mosely, 2019 COA 143, ¶¶ 19-21 (cert. granted Mar. 30, 2020), that
a jury need not unanimously agree on which self-defense exception
the prosecution proved. Accordingly, we affirm the judgment.
1
I. Background
¶3 During an altercation, Roberts-Bicking shot Ricardo
Thurmond1 six times with a pistol, injuring him, and hit Ricardo’s
brother, Terry, over the head with the pistol. The prosecution
charged Roberts-Bicking with attempted first degree murder and
first degree assault as to Ricardo and menacing as to Terry. The
issue at trial was whether Roberts-Bicking acted in self-defense.
¶4 According to the prosecution’s evidence, Terry agreed to let
Roberts-Bicking become his roommate. In May 2015, the two
disagreed over (1) rental payments Terry felt were owed him and (2)
Roberts-Bicking keeping a gun in his bedroom area2 against Terry’s
wishes. Terry gave Roberts-Bicking a month to move out.
¶5 In June 2015, Terry reiterated his demand that
Roberts-Bicking vacate the premises and told Roberts-Bicking to
leave the key on the table. On the night before the incident at
issue, Terry sent text messages reiterating that Roberts-Bicking
1 Because Ricardo Thurmond and Terry Thurmond are brothers, we
use their first names.
2 Roberts-Bicking converted a living room in the one-bedroom
apartment into his bedroom area by putting his bed, some
furniture, and his belongings there. There was no door to separate
his bedroom area from the rest of the apartment.
2
needed to leave the apartment. Roberts-Bicking did not respond to
those messages.
¶6 On the morning of the shooting, at approximately 5:30 a.m.,
Terry entered Roberts-Bicking’s bedroom area, demanding the key
to the apartment. Roberts-Bicking refused, saying, “You’re going to
have to call the police to get this key.” Ricardo, having heard
Roberts-Bicking and Terry talking, entered Roberts-Bicking’s
bedroom area and also demanded the key.
¶7 What happened next was disputed at trial.
¶8 According to Terry and Ricardo, neither of the brothers
threatened Roberts-Bicking, had any objects in their hands, or
raised their voices. After hearing Terry and Roberts-Bicking talking,
Ricardo joined Terry, tapped a piece of wood near the foot of the
bed, and said, “He wants you out, it’s his house.” Roberts-Bicking
then “rose up out of the bed, show[ed] a pistol, and said, ‘You
motherfuckers will die,’ and started firing.” Roberts-Bicking shot
Ricardo six times. Roberts-Bicking then beat Terry in his head with
the pistol and choked him, while using a racial epithet and saying,
“You . . . fucked with the wrong guy,” and “you will die.” Terry
threw Roberts-Bicking off him and fled the apartment.
3
¶9 Roberts-Bicking did not testify at trial. He had, however, given
the police a statement that was later admitted into evidence at trial.
In that statement, Roberts-Bicking said that both of the Thurmond
brothers had previously threatened to physically harm him.3 On
that morning, Terry entered his bedroom area, looking for the key
on the dresser and knocking his belongings to the floor. Terry had
an object in his hand.4 Ricardo had then entered the room, saying,
“We aren’t fucking around,” grabbed his feet through the blanket,
and pulled the blanket off him. Roberts-Bicking “had no idea” what
the brothers were going to do; he knew the brothers were “attacking
him,” though they had not “put physical hands on him.” He pulled
out his pistol, pointed it at Ricardo, and said, “You want to fuck
with me, try it.” When the brothers “moved towards” him, he
3 According to Roberts-Bicking, Terry had “told [him] once he would
slap [him]” if he didn’t give Terry the house key, and another time
Terry threatened him “somehow,” “that he wanted to beat up
[Roberts-Bicking] or something like that.” Further, around 3 a.m.
the morning of the incident, Ricardo had threatened him, saying
that “he wanted to fight [Roberts-Bicking] outside.” (In this latter
instance, Roberts-Bicking told Ricardo to “fuck off, because he was
drunk.”)
4 Roberts-Bicking stated that at the time he saw the object he did
not know “what [Terry] had in his hand,” but that there was “a knife
on the ground” after the incident.
4
“opened fire” on Ricardo. After emptying his pistol and “[not
knowing] what to do,” Roberts-Bicking “start[ed] punching [Terry] . .
. in the face as hard as [he] could” with the pistol until Terry got
free and ran off.
¶ 10 The jury acquitted Roberts-Bicking of attempted first degree
murder but convicted him of attempted second degree murder and
first degree assault (as to Ricardo) and menacing (as to Terry).
¶ 11 Roberts-Bicking now appeals. On appeal, he contends that
reversal is required because of four instructional errors related to
his defense of self-defense. Specifically, Roberts-Bicking argues
that the trial court erred by (1) failing to give an instruction
regarding multiple assailants and apparent necessity; (2) giving an
initial aggressor instruction; (3) giving a provocation instruction;
and (4) failing to instruct the jury that if it rejected self-defense on
the basis of a self-defense exception, it could only rely on one
exception and thus must unanimously agree either that
Roberts-Bicking was the initial aggressor or that he provoked the
brothers into attacking him. We address, and reject, each
contention in turn.
5
II. The Lack of a Multiple Assailants or Apparent Necessity
Instruction
¶ 12 Roberts-Bicking contends that the trial court reversibly erred
in rejecting proposed self-defense instructions on apparent
necessity and defense against multiple assailants. We disagree.
A. Additional Facts
¶ 13 During the jury instruction conference, defense counsel
requested, but the trial court did not give, the following “multiple
assailants” instruction:
[I]n determining the reasonableness of Mr.
Roberts-Bicking’s beliefs and actions, you
must consider the totality of the
circumstances, which includes the number of
people who reasonably appeared to be
threatening Mr. Roberts-Bicking.
¶ 14 Defense counsel also requested, but the trial court did not
give, the following “apparent necessity” instruction:
A person is allowed to act on the appearance of
a threat, so long as it is reasonable, even if he
turns out to be wrong about the threat.
When a person has reasonable grounds for
believing, and does actually believe, that
danger of bodily injury is imminent, he may
act on such appearances and defend himself.
A person may act on such appearances,
although the appearances turn out to be false,
or although he may have been mistaken as to
the extent of the actual danger.
6
Apparent necessity, if well-grounded and of
such a character as to appeal to a reasonable
person under similar conditions and
circumstances, as being sufficient to require
action, justifies the application of self-defense
to the same extent as actual or real danger.
¶ 15 Instead, consistent with the model jury instructions, see
COLJI-Crim. H:11 (2019), and section 18-1-704, C.R.S. 2020, the
court instructed as follows:
Mr. Roberts-Bicking 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.
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.
7
The prosecution has the burden to prove,
beyond a reasonable doubt, that Mr.
Roberts-Bicking’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.
¶ 16 During deliberations, the jury submitted a question regarding
the meaning of the phrase “he reasonably believed” as used in the
instructions: “[I]s it what he believed to be reasonable or what we
believe to be reasonable — more info please.” Roberts-Bicking’s
counsel reiterated the request for the previously tendered multiple
assailant and apparent necessity instructions. Instead, the court
responded,
Ladies and Gentleman of the jury[,] in
determining the reasonableness of Mr.
Roberts-Bicking’s beliefs and actions, you are
instructed that you are to apply an objective
standard based on what a reasonable person
in Mr. Roberts-Bicking’s situation would have
believed or done under those circumstances.
In making this determination, you are to
consider the totality of the circumstances
shown by the evidence.
B. Standard of Review and Applicable Law
¶ 17 The trial court has a duty to instruct the jury correctly on all
matters of law. People v. Knapp, 2020 COA 107, ¶ 20. We review
8
jury instructions de novo to determine if they correctly informed the
jury of the applicable law. People v. Luna, 2020 COA 123M, ¶ 8.
However, if the jury was adequately instructed on the law, we
review for abuse of discretion a trial court’s decision whether to give
a particular instruction and we “will not disturb the ruling unless it
is manifestly arbitrary, unreasonable, or unfair.” People v. Trujillo,
2018 COA 12, ¶ 11.
¶ 18 A person is justified in using a degree of physical force he
reasonably believes necessary upon another to defend himself from
what he “reasonably believes to be the use or imminent use of
unlawful physical force” against him by that other person, “and he
may use a degree of force which he reasonably believes to be
necessary for that purpose.” § 18-1-704(1), C.R.S. 2020.
¶ 19 In People v. Jones, 675 P.2d 9, 14 (Colo. 1984), the supreme
court determined that the trier of fact must consider “the number of
persons reasonably appearing to be threatening the accused” when
“evaluating the reasonableness of the accused’s belief in the
necessity of defensive action and the reasonableness of force used
by him to repel the apparent danger.” In that case, because a jury
9
instruction on multiple assailants — though inartfully drafted —
was rejected by the district court, a new trial was required. Id.
¶ 20 After Jones, divisions of this court observed that “[i]n
situations involving multiple participants, the instruction must
direct the trier of fact to consider the ‘totality of the circumstances,
including the number of persons reasonably appearing to be
threatening the accused.’” People v. Manzanares, 942 P.2d 1235,
1240 (Colo. App. 1996) (quoting Jones, 675 P.2d at 14); see People
v. Cuevas, 740 P.2d 25, 27 (Colo. App. 1987) (principle recognized);
People v. Auldridge, 724 P.2d 87, 88 (Colo. App. 1986) (same); see
also People v. Beasley, 778 P.2d 304, 307 (Colo. App. 1989) (If there
are multiple participants in a fight, “the instruction must
necessarily refer to the use of unlawful force by any of the
defendant’s opponents.”).
¶ 21 In Riley v. People, 266 P.3d 1089, 1094 (Colo. 2011), however,
the supreme court clarified “that Jones does not require a trial
court to give a specific multiple assailants instruction in every case
involving both multiple assailants and self-defense.” Rather, the
court held that “so long as the given instructions properly direct the
jury to consider the totality of the circumstances during its
10
deliberations on reasonableness, those instructions will satisfy
Jones.” Id.
¶ 22 There, the supreme court noted that the jury was instructed in
the language of the self-defense statute and also received an
instruction that “[a]pparent necessity, if well-grounded and of such
character as to appeal to a reasonable person under similar
conditions and circumstances, as being sufficient to require action,
justifies the application of self-defense to the same extent as actual
or real danger.” Id. at 1091. The court held that the “broad
language — ‘reasonable person under similar conditions and
circumstances’ — accurately informed the jury that it should
consider the ‘totality of the circumstances, including the number of
persons reasonably appearing to be threatening the accused’ and
thus satisfied the Jones requirement.” Id. at 1095.
¶ 23 We do not read Riley to require a trial court to specifically
provide either a multiple assailant instruction or an apparent
necessity instruction. Indeed, our supreme court explicitly rejected
a similarly narrow interpretation of Jones itself, stating that
“interpreting [Jones] in that fashion would inappropriately infringe
on the discretion trial courts have to tailor jury instructions to fit
11
each unique case.” Id. at 1094. Further, the supreme court has
unequivocally stated that an instruction that tracks the statutory
language — particularly the language focusing on what the
defendant “reasonably believed” — sufficiently encompasses the
concept of apparent necessity instruction, and thus an additional
instruction on that concept is no longer necessary. Beckett v.
People, 800 P.2d 74, 77-78 (Colo. 1990).
¶ 24 Moreover, when analyzing whether the supplemental
instruction given in Riley was sufficient, the supreme court did not
emphasize the phrase “[a]pparent necessity” but rather focused on
the phrase “reasonable person under similar conditions and
circumstances.” Riley, 266 P.3d at 1095. This language, the court
held, is what made the instructions as a whole sufficient.
¶ 25 We further acknowledge that the supreme court in Riley
appears to have left open the possibility that, in light of Beckett, a
stock jury instruction on self-defense alone would be sufficient to
satisfy Jones. Id. at 1095 n.6. However, absent a more explicit
proclamation that Beckett altered the holding of Jones, we assume
that Jones — as explicitly modified by Riley — remains good law to
12
the extent it requires an explicit instruction that the jury must
consider the totality of the circumstances.
C. Analysis
¶ 26 Here, the trial court rejected Roberts-Bicking’s instructions on
both apparent necessity and multiple assailants. However, as we
read Riley, the stock instruction alone fails to adequately instruct
the jury to consider the totality of the circumstances in a multiple
assailant scenario. Id. at 1093. Thus, we agree that it was
necessary in this case to give some instruction beyond the stock
jury instruction.
¶ 27 However, while the initial instructions may have been
inadequate in this regard, the supplemental instruction provided in
response to the jury’s question cured any deficiency. The trial court
instructed the jury that it must consider “what a reasonable person
in Mr. Roberts-Bicking’s situation would have believed or done under
those circumstances. In making this determination, you are to
consider the totality of the circumstances shown by the evidence.”
(Emphasis added.) This instruction is in all material respects
identical to the instruction given, and approved of, in Riley.
13
¶ 28 In sum, the supreme court has held that a specific apparent
necessity instruction is never required, Beckett, 800 P.2d at 77-78,
though such an instruction may be sufficient to supplement the
stock instruction in a multiple assailant case, Riley, 266 P.3d at
1095. All that is required is that the jury be instructed to consider
the reasonableness of the defendant’s beliefs and actions under the
totality of the circumstances. Id. at 1094. Here, we conclude that
the supplemental jury instruction adequately informed the jury that
it must do precisely that. Accordingly, the trial court did not, under
the circumstances of this case, err by declining to give either a
multiple assailant instruction or an apparent necessity instruction.
III. The Initial Aggressor and Provocation Instructions
¶ 29 Roberts-Bicking next contends that the trial court should have
given neither an instruction on initial aggressor nor one on
provocation. He further argues that, to the extent giving both
instructions was not error, the trial court should have instructed
the jury that the two exceptions were mutually exclusive of one
another, and that the jury thus needed to unanimously agree which
of the two, if either, was applicable. Again, we disagree with each
contention.
14
A. The Evidence Warranted Instructing the Jury on the Initial
Aggressor and Provocation Exceptions to Self-Defense
1. Standard of Review and Applicable Law
¶ 30 “One way for the prosecution to defeat a claim of self-defense
is to prove beyond a reasonable doubt that an exception to
self-defense applies.” Castillo v. People, 2018 CO 62, ¶ 40. Two
such exceptions are initial aggressor and provocation. Id. at ¶¶ 3,
29.
¶ 31 A trial court may instruct the jury on an exception to an
asserted affirmative defense if “some evidence” supports the
exception. See Galvan v. People, 2020 CO 82, ¶ 25 (provocation
exception). To qualify as “some evidence,” the evidence must be
such as would support a reasonable inference that the accused was
the initial aggressor or provoked the other person into attacking (or
appearing to attack) him. See People v. Griffin, 224 P.3d 292, 300
(Colo. App. 2009) (initial aggressor exception).
¶ 32 In determining whether the trial court erred in instructing a
jury on the exceptions to self-defense, we review de novo whether
sufficient evidence exists to support the challenged instructions.
15
Castillo, ¶ 32. We view the evidence in the light most favorable to
the giving of the challenged instruction. Galvan, ¶ 33.
2. The Evidence Warranted Instructing the Jury on the Initial
Aggressor and Provocation Exceptions to Self-Defense
a. The Initial Aggressor Exception
¶ 33 An initial aggressor instruction is warranted when the
evidence suggests the defendant initiated the physical conflict by
using or threatening imminent use of unlawful physical force.
Castillo, ¶¶ 43, 50-51.
¶ 34 Here, viewing the evidence in the light most favorable to giving
the initial aggressor instruction, we conclude that the record
contains some evidence to support it. Though Roberts-Bicking
asserts that it was the Thurmond brothers who acted as initial
aggressors because they came into his bedroom area and one of
them grabbed his feet and touched his blanket, we agree with the
People that the record admits of a contrary conclusion. The
Thurmond brothers, after all, testified that (1) they went into the
small bedroom to get Roberts-Bicking to give up his key to the
apartment; and (2) they did not threaten Roberts-Bicking.
16
Nonetheless, Roberts-Bicking sat up in his bed, brandished a pistol,
and said, “you motherfuckers will die.”
¶ 35 The Thurmond brothers’ testimony provided ample grounds to
support the conclusion that it was Roberts-Bicking who initiated
the physical conflict by using or threatening the imminent use of
unlawful physical force. See Griffin, 224 P.3d at 300 (“utter[ing]
insults” is not sufficient for an initial aggressor instruction, but
“evidence of [his] other actions,” such as producing a gun, is).
Accordingly, we conclude the trial court did not err in instructing
the jury on the initial aggressor exception to self-defense.
¶ 36 In so concluding, we reject Roberts-Bicking’s argument that
the initial aggressor instruction was inappropriate because “the act
giving rise to the charged offense cannot serve as evidence that the
defendant was the initial aggressor,” citing Manzanares, 942 P.2d at
1241.5 Even accepting this proposition as true, it does not resolve
5 In this regard, in People v. Manzanares, 942 P.2d 1235, 1241
(Colo. App. 1996), the division wrote:
[T]he only issue remaining upon defendant’s
return to the party was whether, by firing his
pistol, he committed any of the crimes charged
17
the issue: the “act” upon which the instruction was based need not
have been, as he asserts, the firing of the pistol; merely producing
the pistol during an argument was sufficient to warrant instructing
the jury on initial aggressor principles. See Griffin, 224 P.3d at 300.
b. The Provocation Exception
¶ 37 A provocation instruction is authorized when
(1) the other person uses unlawful physical
force against [the defendant]; (2) the defendant
provoked the use of such physical force by the
other person; and (3) the defendant intended
his provocation to goad the other person into
attacking him [or her] in order to provide a
pretext to injure or kill that person.
Galvan, ¶ 19 (citing People v. Silva, 987 P.2d 909, 914 (Colo. App.
1999)).
¶ 38 Here, the prosecution said that
the evidence of provocation is from
[Roberts-Bicking’s] own words. He claims in
his interview that the victims made an initial
and, if so, whether the conduct was justified
because he had acted in self-defense.
A finding by the jury that he was at that point
the “initial aggressor” would be no more than a
rejection of the claim of self-defense. Thus, the
instruction was not appropriate in these
circumstances.
18
attack on him or that they confronted him, but
then that when they were at the foot of his
bed, he claims that he then pulled the
handgun. That he sat up and pointed it
directly at Ricardo Thurmond and he said, and
these are close to quotes, I believe, “If you want
to fuck with me, try it.”
¶ 39 The trial court agreed, saying
“If you want to fuck with me, try it,” could be
interpreted as a warning. Could be interpreted
as an invitation. I think that does fall within
provocation, so I think it is a somewhat close
call. But . . . there is evidence, depending on
how the jury views the overall evidence, that
would suggest that the reason this escalated to
a shooting was because [Roberts-Bicking]
escalated it and provoked them by inviting
them to attack him, which then allowed him to
shoot them.
¶ 40 The trial court correctly decided this issue. What
Roberts-Bicking meant and intended by his statement is open to
different, but nevertheless reasonable, interpretations — one of
which would support instructing the jury on the provocation
exception to self-defense. “The jury . . . must perform the
fact-finding function when conflicting evidence — and conflicting
reasonable inferences — are presented.” People v. Perez, 2016 CO
12, ¶ 31. By instructing the jury on provocation, the trial court
19
appropriately provided the jury with a necessary legal principle to
permit it to perform that function.
B. The Exceptions Are Not Mutually Exclusive of One Another
and Unanimity Is Not Required
¶ 41 Finally, we reject Roberts-Bicking’s assertion that the trial
court must instruct the jury that the exceptions are mutually
exclusive of one another and that the jury cannot apply a particular
exception unless it unanimously agrees that that particular
exception has been proven beyond a reasonable doubt.6
¶ 42 In People v. Mosely, a division of this court held that, in some
circumstances, a court must instruct the jury that it has to
unanimously agree which of the two exceptions to self-defense
apply. Mosely, ¶¶ 19-21. But a more recent opinion from our
6 The instruction Roberts-Bicking requested, and the trial court
refused, said,
You are instructed that you may find that
neither [exception] applies. If however, you
find that one of these numbered [exceptions]
applies, you must unanimously agree which
one has been disproven [sic] beyond a
reasonable doubt. A person cannot be both
the initial aggressor and the provoking party.
20
supreme court has cast doubt on the foundational premise of the
Mosely division’s analysis.
¶ 43 In Mosely, the division was, at least in part, concerned with
the possibility that a jury could, by concluding that both exceptions
applied, find a defendant guilty on legally and logically inconsistent
grounds. Id. at ¶ 23 (“Our conclusion is supported by case law in a
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.”). The division’s concern was premised on an
understanding that the initial aggressor and provocation exceptions
were mutually exclusive of one another:
[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
the defendant with the excuse to injure or kill
the [victim].
....
[I]n contrast to the initial aggressor limitation,
the provocation limitation applies in situations
where the defendant was not the initial
aggressor.
Id. at ¶ 17 (quoting Silva, 987 P.2d at 914).
21
¶ 44 But Galvan appears to have changed that. In Galvan, the
supreme court held that
a defendant forfeits self-defense as an
affirmative defense to legally justify his use of
physical force upon another person if: (1) the
other person uses unlawful physical force
against him; (2) the defendant provoked the
use of such physical force by the other person;
and (3) the defendant intended his provocation
to goad the other person into attacking him in
order to provide a pretext to injure or kill that
person.
Galvan, ¶ 19. In an accompanying footnote, the court said:
The division in Silva surmised that, under the
provocation exception, “the victim [must]
make[ ] an initial attack on the defendant.”
987 P.2d at 914 (emphasis added). But
section 18-1-704(3)(a)[, C.R.S. 2020,] does not
limit the exception to a situation in which the
victim attacks first. Nor have we ever
engrafted such a restriction onto the
exception.
Id. at ¶ 19 n.4.
¶ 45 In other words, an initial act of aggression (say, a threat of
unlawful force) can be sufficient to establish both that the actor is
the initial aggressor and — if that act of aggression is undertaken
with the intent to provoke the other person to attack so the actor
may injure or kill the other person — that the actor provoked the
22
other person. Because the components of the initial aggressor and
provocation exceptions are no longer necessarily incompatible, an
instruction saying that at most only one of the two exceptions could
apply is inaccurate and a jury’s acceptance of both exceptions
would not lead to an impermissible legally and logically inconsistent
guilty verdict.
¶ 46 Otherwise, it is true that, when properly raised, the affirmative
defense of self-defense is, under our law, treated as an additional
element of the crime. See People v. Pickering, 276 P.3d 553, 555
(Colo. 2011) (“[I]f presented evidence raises the issue of an
affirmative defense, the affirmative defense effectively becomes an
additional element.”). But while a “jury must unanimously agree on
all elements of a crime, the jury 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 People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (“Generally,
jurors need not agree about the evidence or theory by which a
particular element is established . . . .”); People v. Rivas, 77 P.3d
882, 887 (Colo. App. 2003) (jurors not required to unanimously
agree on theory of culpability, only that the elements of the charge
23
have been satisfied according to a theory of culpability); People v.
Hall, 60 P.3d 728, 733 (Colo. App. 2002) (jury need not
unanimously determine whether defendant committed crime as
principal or complicitor).
¶ 47 Consequently, although a jury must unanimously find that the
government has proved each element of an offense, jury unanimity
is not required with respect to alternate means or ways of satisfying
an element of an offense. State v. Epps, 949 N.W.2d 474, 481
(Minn. Ct. App. 2020) (citing State v. Ihle, 640 N.W.2d 910, 918
(Minn. 2002)); see also, e.g., Schad v. Arizona, 501 U.S. 624, 630-45
(1991) (plurality opinion) (holding unanimity was not required as to
alternative, equally culpable, mental states where a single crime
was charged: “We see no reason, however, why the rule that the
jury need not agree as to mere means of satisfying the actus reus
element of an offense should not apply equally to alternative means
of satisfying the element of mens rea”); People v. Archuleta, 2020 CO
63M, ¶ 20 (“[A] jury need not unanimously decide ‘which of several
possible sets of underlying brute facts make up a particular
element’ or ‘which of several possible means the defendant used to
commit an element of the crime.’” (quoting Richardson v. United
24
States, 526 U.S. 813, 817 (1999))); State v. Armengau, 93 N.E.3d
284, 303 (Ohio Ct. App. 2017) (“[U]nanimity is not required on
the manner in which each element is satisfied . . . .”); Todd v. State,
262 P.3d 1222, 1224 (Utah Ct. App. 2011) (A “jury need not
unanimously agree on which of three possible formulations of the
necessary mens rea had been proved as long as all jurors agreed
that at least one of the three had been proved.”) (citation omitted);
State v. Armstrong, 394 P.3d 373, 379 (Wash. 2017) (“When one
element of the crime can be satisfied by alternative means, jury
unanimity is satisfied if the jury unanimously agrees the State
proved that element beyond a reasonable doubt . . . .”).
¶ 48 Consistent with these authorities, the Court of Appeals in
Texas has held that “the jury is not required to agree unanimously
on the specific component of self-defense on which it is not
persuaded.” Harrod v. State, 203 S.W.3d 622, 628 (Tex. App. 2006).
¶ 49 The division in Mosely distinguished the Harrod case because
“Texas treats self-defense as a justification, not an affirmative
defense,” and, thus, is more like a “traverse.” Mosely, ¶¶ 24-25.
We fail, however, to see how the affirmative defense/traverse
dichotomy makes any difference, given that
25
 In Colorado, as in Texas, self-defense is a defense of
“justification.” See § 18-1-704(1) (“[A] person is justified in
using physical force upon another person in order to defend
himself or a third person from what he reasonably believes to
be the use or imminent use of unlawful physical force by that
other person, and he may use a degree of force which he
reasonably believes to be necessary for that purpose.”)
(emphasis added); § 18-1-710, C.R.S. 2020 (“The issues of
justification or exemption from criminal liability under
sections 18-1-701 to 18-1-709 are affirmative defenses.”);
Galvan, ¶ 19 (describing self-defense “as an affirmative
defense to legally justify his use of physical force upon another
person”).
 In Texas, as in Colorado, once the issue of self-defense is
raised, the prosecution has the burden of proving beyond a
reasonable doubt that the defendant was not acting in
self-defense. See, e.g., McFadden v. State, 541 S.W.3d 277,
284 (Tex. App. 2018) (The State must “persuade the jury
beyond a reasonable doubt that the defendant did not act in
self-defense.”); Smith v. State, 355 S.W.3d 138, 145 (Tex. App.
26
2011) (noting that “the State bears the burden of persuasion
to disprove” a claim of self-defense “by establishing its case
beyond a reasonable doubt”); Luck v. State, 588 S.W.2d 371,
375 (Tex. Crim. App. 1979) (“[W]hen the charge is viewed as a
whole, it placed the burden on the State to show beyond a
reasonable doubt that appellant was not acting in
self-defense.”).
¶ 50 In our view, and particularly in light of the supreme court’s
subsequent decision in Galvan, the division in Mosely drew a
distinction without a difference. We therefore decline to follow that
case. See People v. Smoots, 2013 COA 152, ¶ 21 (citing People v.
Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008)), aff’d sub nom.
Reyna-Abarca v. People, 2017 CO 15. Instead, we conclude that the
exceptions are not mutually exclusive and that unanimity is not
required. Thus, the trial court did not err by declining to provide
the special unanimity instruction requested here.
IV. Disposition
¶ 51 The judgment of conviction is affirmed.
JUDGE DAILEY and JUDGE BERGER concur.
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