23CA1309 & 23CA1317 Peo v Gallegos 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals Nos. 23CA1309 & 23CA1317 Jefferson County District Court No. 14CR2322 Honorable Tamara S. Russell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Scott Alan Gallegos,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE WELLING Schock and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Scott Alan Gallegos, appeals the judgment of
conviction for one count of first degree assault, one count of second
degree assault, and two counts of reckless endangerment. Because
we conclude that the trial court’s refusal to instruct the jury on
Gallegos’ defense of a third person affirmative defense
impermissibly lowered the prosecution’s burden of proof for the first
degree assault charge, and likely substantially influenced the
remaining verdicts, we reverse the judgment of conviction and
remand to the trial court for a new trial.
I. Background
¶2 In 2014, Gallegos and his girlfriend, J.W., took their
motorcycles for a test drive after working on them for most of the
day. Gallegos brought some of his tools with him, including a
crescent wrench. They ended their test drive at a local karaoke bar
to meet up with some friends.
¶3 They both sat facing away from the bar, with J.W. sitting to
Gallegos’ right. Another patron, Dennis Shing, approached J.W.,
introduced himself, and also sat facing away from the bar to her
right. J.W. and Shing engaged in small talk while Gallegos watched
karaoke performances.
1 ¶4 J.W. testified that at some point during their conversation,
Shing “poked” J.W.’s breast. J.W. then stood up and told her friend
that she wanted to leave the bar. J.W. testified that before she
walked away, she told Gallegos that Shing had just touched her and
that she was leaving the bar.
¶5 Upon hearing that Shing had touched J.W., Gallegos pulled
his crescent wrench out of his pocket and hit Shing in the eye and
jaw with it. As Shing moved away, Gallegos kicked him from
behind. Gallegos struck Shing with the wrench at least one more
time from behind before Shing exited the bar and called 911.
¶6 As Shing exited the bar, Matt McDermott, Shing’s friend,
grabbed Gallegos from behind. Gallegos’ friend pulled McDermott
off Gallegos and onto the ground, such that McDermott was lying
face up on the ground. According to Gallegos, McDermott kicked at
him from the ground, so Gallegos hit McDermott with the wrench to
keep him down. After the altercation, Gallegos exited the bar and
drove his motorcycle home.
¶7 Gallegos was charged with one count of assault in the first
degree, pursuant to section 18-3-202(1)(a), C.R.S. 2025, for his
conduct toward Shing, and one count of assault in the second
2 degree, pursuant to section 18-3-203(1)(b), C.R.S. 2025, for his
conduct toward McDermott.
¶8 At trial, the prosecution admitted video footage of the attack.
The video shows the entire incident, without audio, from two
different, slightly obscured, angles. The video shows Shing
approaching J.W. and chatting with her, then J.W. standing up
from her barstool and speaking to Gallegos. In the video, J.W. is
still in between Gallegos and Shing when Gallegos begins to pull the
wrench out of his pocket.
¶9 J.W. testified that she is sensitive to people invading her
personal space because she was a victim of sexual assault as a
child. She also testified that Gallegos is aware of this sensitivity.
And she testified that when Shing “poked” her breast, she was
“shocked” and uncomfortable, and it made her want to leave the
bar.
¶ 10 Gallegos testified that he was aware of J.W.’s history with
sexual assault and that “she don’t like people touching her.” He
also testified that when J.W. told him that Shing had touched her,
“[s]he looked a little bit stunned,” and even though he didn’t see it
happen, he understood that to mean Shing was “inappropriately
3 touching [J.W.], like groping.” Gallegos stated that after J.W. told
him that Shing had touched her, he saw her walk away. Gallegos
admitted to attacking Shing and McDermott with his wrench but
stated that he “was just trying to, you know, protect [J.W.].”
Further, Gallegos testified that he didn’t hit Shing “with full force”
because he wasn’t trying to hurt Shing; instead, he was trying to
“scare him” and get him out of the bar.
¶ 11 An Arvada police officer who responded to the 911 call testified
that upon arriving at the scene, he observed that Shing’s left eyelid
was bleeding and swollen, his bottom lip was bleeding, and there
was a lump on the side of his head behind his left ear. Shing
testified that his eyelid was cut open and the injury required
stitches.
¶ 12 Gallegos, through his counsel, requested that the jury be
instructed on the lesser counts of reckless endangerment of both
Shing and McDermott.1 The court granted this request.
1 At trial, counsel and the trial court referred to these counts as
“lesser nonincluded” offenses. Both Gallegos’ and the People’s briefs refer to these charges as “lesser included” offenses. Due to our disposition, we don’t resolve this conflict.
4 ¶ 13 Gallegos also requested that the jury be instructed on the
defense of a third person affirmative defense for the charge of first
degree assault against Shing. He also asked to include the defense
of a third person defense on the jury instructions for reckless
endangerment of Shing as an elemental traverse. Specifically,
Gallegos’ counsel argued that the instruction was warranted
because Gallegos testified that he attacked Shing to protect J.W.
The trial court refused to give the jury a defense of a third person
affirmative defense instruction:
The testimony is clear that there was no discussion of unlawful physical force by Dennis Shing. There was an allegation of an unlawful touching, which would have been unlawful if it were sexual in nature. However, I don’t think this defense of person is getting at it to protect someone from unlawful physical force. As we’ve seen in the video and heard in the testimony from all witnesses, [J.W.] had already gotten up and started to walk away before Mr. Gallegos picked up his wrench and struck Mr. Shing. He was, by Mr. Gallegos’s own admission, not keeping Mr. Shing from harming [J.W.]. It was more of a response.
So I don’t believe that this is an appropriate affirmative defense, and I’m going to mark it as denied by the Court.
5 ¶ 14 The trial court did, however, grant Gallegos’ request to instruct
the jury on a self-defense affirmative defense for the charge of
second degree assault and reckless endangerment against
McDermott. This jury instruction included the initial aggressor
exception to the self-defense affirmative defense — instructing the
jury that Gallegos wasn’t acting in self-defense if it found that he
was the initial aggressor.
¶ 15 Ultimately, the jury found Gallegos guilty of all four counts —
the charged counts and added counts.
¶ 16 The trial court sentenced Gallegos to ten years in the custody
of the Department of Corrections for the first degree assault
conviction, to be served consecutively with an eight-year sentence
for the second degree assault conviction. The trial court also
imposed thirty-day sentences for each reckless endangerment
charge, to be served concurrently, which had already been served
through presentence confinement.
II. Analysis
¶ 17 On appeal, Gallegos contends that the trial court erred in six
ways. Specifically, he contends that the trial court erred by
(1) denying Gallegos’ request to instruct the jury on his defense of a
6 third person affirmative defense; (2) failing to sua sponte instruct
the jury on the presence of multiple assailants when it instructed
the jury on Gallegos’ self-defense affirmative defense; (3) improperly
instructing the jury on the provocation exception to his self-defense
affirmative defense; (4) failing to sua sponte intervene in alleged
prosecutorial misconduct during closing arguments; (5) failing to
merge the reckless endangerment convictions into the greater first
and second degree assault convictions; and (6) committing
cumulative error. We agree that the trial court erred in refusing to
instruct the jury on Gallegos’ defense of a third person affirmative
defense. Because we conclude that this error impermissibly
lowered the prosecution’s burden of proof for the first degree
assault charge and the error likely substantially influenced the
other verdicts, we reverse the judgment on this basis without
addressing the remining issues.
A. Defense of a Third Person
¶ 18 Gallegos contends that the trial court erred when it refused to
instruct the jury on his defense of a third person affirmative defense
for the first degree assault of Shing. We agree.
7 1. Standard of Review and Applicable Law
¶ 19 We review de novo whether sufficient evidence supports giving
a defense of a third person jury instruction. People v. Wakefield,
2018 COA 37, ¶ 8. When an affirmative defense jury instruction is
appropriate, the affirmative defense is treated as an additional
element of the charged offense. Galvan v. People, 2020 CO 82,
¶ 21. If a trial court erroneously refuses to give an affirmative
defense instruction, then the prosecution wasn’t required to prove
all the necessary elements and “the prosecution’s burden of proof
has been impermissibly lowered, implicating a defendant’s
constitutional rights.” Pearson v. People, 2022 CO 4, ¶ 16.
Accordingly, such an error is subject to constitutional harmless
error review. Id. These errors require reversal if “there is a
reasonable possibility that the [error] might have contributed to the
conviction.” Hagos v. People, 2012 CO 63, ¶ 11 (quoting Chapman
v. California, 386 U.S. 18, 23 (1967)).
¶ 20 A trial court has a duty to correctly instruct the jury on the
law applicable to the case. People v. Stewart, 55 P.3d 107, 120
(Colo. 2002). A defendant is entitled to an affirmative defense jury
instruction when he or she raises some credible evidence to support
8 it. § 18-1-407(1), C.R.S. 2025. “The ‘some credible evidence’
standard requires little evidence for submitting an affirmative
defense to the jury.” O’Shaughnessy v. People, 2012 CO 9, ¶ 12.
This quantum of proof is satisfied if there is any evidence
supporting the defense theory in the record, “even highly
improbable testimony by the defendant.” Stewart, 55 P.3d at 120;
see People v. York, 897 P.2d 848, 850 (Colo. App. 1994).
¶ 21 “When considering whether a defendant is entitled to
requested instructions, we consider the evidence in the light most
favorable to the defendant.” Cassels v. People, 92 P.3d 951, 955
(Colo. 2004).
¶ 22 Colorado’s defense of a third person statute provides:
[A] person is justified in using physical force upon another person in order to defend . . . 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.
§ 18-1-704(1), C.R.S. 2025.
2. Application
¶ 23 At trial, Gallegos requested a defense of a third person jury
instruction for his theory that he attacked Shing to defend J.W.
9 from further unwanted and uninvited sexual contact. To be entitled
to the affirmative defense jury instruction, Gallegos needed to
provide some credible evidence showing that (1) he acted in defense
of J.W.; (2) based on a reasonable belief that Shing was using or
imminently going to use unlawful physical force on J.W.; and
(3) Gallegos used a degree of force he reasonably believed to be
necessary for such a purpose. See § 18-1-407(1); § 18-1-704(1)(a).
We will address these elements, and the evidence in the record that
satisfies each, in turn below.
a. Evidence that Gallegos Acted in Defense of J.W.
¶ 24 First, there is some evidence in the record that Gallegos
attacked Shing in defense of J.W. When he was asked about what
he did to Shing, Gallegos responded that he “was just trying to, you
know, protect her.” While this may be thin, the quantum of proof
required to provide a jury instruction on the defendant’s affirmative
defense theory is low. See Galvan, ¶ 24 (The “some credible
evidence” standard is interchangeable with “some evidence,” “any
evidence,” “a scintilla of evidence,” and a “small quantum of
evidence.”). Further, any evidence is sufficient even if it is “highly
improbable testimony by the defendant.” Stewart, 55 P.3d at 120.
10 Accordingly, there is sufficient evidence in the record to support
that Gallegos was acting in defense of J.W.
b. Evidence of Gallegos’ Reasonable Belief of Shing’s Use or Imminent Use of Unlawful Physical Force
¶ 25 Next, we consider whether there was some credible evidence
that Gallegos had a reasonable belief that Shing was using or
imminently going to use unlawful physical force against J.W.
¶ 26 The defense of a third person affirmative defense doesn’t
require actual knowledge of all circumstances surrounding
imminent danger — it only requires a reasonable belief of the
necessity to intervene to prevent injury to a third person. People v.
Silva, 987 P.2d 909, 916 (Colo. App. 1999). This is because the
defendant’s reasonable belief is the “touchstone” of a defense of a
third person defense. People v. Suazo, 867 P.2d 161, 169 (Colo.
App. 1993). The defense of a third person statute considers both
the reasonable belief and the actual belief of the defendant. See
People v. Jones, 2023 COA 104, ¶ 26.
¶ 27 First, the People argue that Shing’s “poke” of J.W. wasn’t
necessarily unlawful physical force because that conclusion
requires an unreasonable assumption that the poke was sexual in
11 nature. It’s undisputed that subjecting a person to unwanted
sexual contact is a crime. See § 18-3-404(1)(a), C.R.S. 2025
(statute defining the crime of unlawful sexual contact). So, if the
“poke” was sexual in nature, it would qualify as unlawful physical
force.
¶ 28 There was ample evidence presented at trial that Shing’s
contact with J.W. was unwanted sexual contact. J.W. testified that
Shing touched her breast and that it left her in shock and prompted
her to leave the bar. Gallegos testified that J.W. had told him that
Shing had touched her, that he was aware of her sensitivity to
unwanted contact, and that he perceived her to be “stunned.”
Gallegos further testified that he understood Shing’s touch was
“inappropriately touching, like groping.” (Emphasis added.)
¶ 29 It’s of no moment that when J.W. told Gallegos that Shing had
touched her, she didn’t specify that Shing had touched her breast
or that it was unwanted contact. After all, Gallegos wasn’t required
to know all the circumstances of the perceived threat to be entitled
to a defense of a third person jury instruction. See Silva, 987 P.2d
at 916. What matters was his actual and reasonable belief of a
perceived threat. See Suazo, 867 P.2d at 169. And Gallegos’
12 testimony is evidence that he held an actual belief that Shing had
made unwanted sexual contact with J.W. Further, it’s reasonable
to assume a touch was unwanted sexual contact when a person
with sensitivity to sexual contact says they were touched and acts
“stunned.”
¶ 30 While the People argue that we can’t assume that this contact
was sexual in nature, the standard for evaluating if evidence
supports the giving of an affirmative defense jury instruction
requires us to draw reasonable inferences in favor of the defendant.
Cassels, 92 P.3d at 955. Viewing this evidence in the light most
favorable to Gallegos, we conclude that there is some credible
evidence to support that Gallegos reasonably believed that Shing’s
“poke” was sexual in nature and, thus, unlawful physical force. See
id.
¶ 31 Next, we turn to whether Gallegos had an actual and
reasonable belief that Shing’s unlawful physical force was
imminent. The trial court rejected Gallegos’ requested defense of a
third person jury instruction based on its perception of the evidence
that there was no imminent threat of further unlawful physical
force because the moment had passed and J.W. was walking away.
13 The People adopt this argument on appeal for why Gallegos’
conviction must stand. We disagree.
¶ 32 Colorado courts haven’t defined “imminent” in the defense of a
third person context but have in the choice of evils context. Suazo,
867 P.2d at 169 (a division of this court used the definition of
“imminent” used in choice of evils jury instructions to evaluate
whether the defendant was entitled to a self-defense jury
instruction). There, “imminent” is defined as “near at hand,
impending or on the point of happening,” and “likely to happen
without delay.” Id. (citations omitted). We will use this definition
for our analysis.
¶ 33 The People argue that because J.W. had stood up and started
to leave when Gallegos attacked Shing, “the only reasonable
inference was that [Gallegos] acted in retaliation rather than
defense.” We, however, don’t view the evidence as being so clear
cut. Yes, the video footage shows that J.W. had already stood up
from her barstool before Gallegos attacked Shing. But the video
footage can also be reasonably interpreted to portray that J.W.
didn’t start to walk away until the very moment when Gallegos
attacked Shing. In other words, J.W. was still in very close
14 proximity to Shing when Gallegos struck him. From this, the jury
could infer that Gallegos reasonably believed that J.W. remained at
imminent risk of further unlawful touching by Shing at the time he
acted. This inference is supported by the video footage, which
shows that J.W. is still in between Gallegos and Shing when
Gallegos begins to pull the wrench out of his pocket to hit Shing.
Therefore, it’s a reasonable inference that J.W. was within Shing’s
reach up until the moment Gallegos attacked him.
¶ 34 And Gallegos’ testimony supports that he actually believed
Shing may touch J.W. again — specifically his testimony that he
was trying to protect J.W. Because J.W. was within Shing’s reach,
and Gallegos knew that Shing had just touched J.W., it was also a
reasonable inference that Shing might touch her again without
delay. Further, the evidence that Shing had touched J.W. right
before Gallegos attacked him supports the giving of the defense of a
third person jury instruction because “[a] defense of self[-]defense,
or defense of [a third person], is usually allowed when the threat, or
perceived threat of injury occurred at or near the time of the acts on
which the charge is based.” Id.
15 ¶ 35 The People argue that there is also evidence that J.W. had
already begun to walk away by the time Gallegos attacked Shing —
including Gallegos’ own testimony — and thus Gallegos can’t argue
that there was an imminent threat. But the evidence that J.W. was
already walking away doesn’t negate the evidence that she was still
within Shing’s reach, for purposes of determining whether the
requested instruction was required to be given.
¶ 36 Viewing the evidence in the light most favorable to Gallegos,
we conclude that there is some credible evidence that Gallegos
reasonably believed his intervention was necessary to prevent a
perceived imminent threat of unlawful physical force.
c. Evidence that Gallegos Used a Degree of Force that He Reasonably Believed to Be Necessary
¶ 37 Finally, there is some evidence in the record that Gallegos
used a degree of force that he reasonably believed to be necessary.
Gallegos testified that he didn’t intend to hurt Shing and that he
was only trying to scare him and get him to leave the bar. Gallegos
also testified that he didn’t hit Shing with full force. This testimony
supports that Gallegos had the actual belief that his use of force
was necessary. Turning to the objective part of the test, it is
16 reasonable for a person to use only enough force to scare someone
to stop them from engaging in unwanted sexual contact.
¶ 38 To be sure, the video footage and the injuries suffered by
Shing suggest that Gallegos used more force than he testified to
using. Weighing this evidence against Gallegos’ testimony,
however, is the jury’s role. Here, we are only evaluating if there was
some evidence to support giving the defense of a third person jury
instruction. Viewing this evidence in the light most favorable to
Gallegos, there was some credible evidence that he used a degree of
force that he reasonably believed was necessary. Therefore, we
conclude that the trial court erred when it refused to give Gallegos’
requested affirmative defense instruction for the first degree assault
of Shing charge.
d. The Error Requires Reversal of the First Degree Assault Conviction
¶ 39 Gallegos contends that the trial court’s erroneous refusal to
instruct the jury on his affirmative defense of a third person theory
requires reversal. We agree.
¶ 40 Had the jury been instructed on defense of a third person, the
prosecution would have needed to disprove one of the elements of
17 the affirmative defense beyond a reasonable doubt. See People v.
Garcia, 113 P.3d 775, 784 (Colo. 2005) (Colorado law dictates that
once a defendant has met the burden of proof to present an
affirmative defense for jury consideration, “the prosecution has the
burden of disproving the claimed affirmative defense beyond a
reasonable doubt.”). Specifically, it would have needed to disprove
at least one of the following: (1) that Gallegos acted in defense of
J.W.; (2) that he did so based on a reasonable belief that Shing was
using or imminently going to use unlawful physical force on J.W.;
and (3) that Gallegos used a degree of force that he reasonably
believed to be necessary for that purpose. See § 18-1-704(1)(a).
But to disregard the failure to give the instruction as harmless, we
must be convinced that there is no reasonable possibility that the
court’s omission of the defense of a third person instruction
contributed to the jury’s verdict finding Gallegos guilty of first
degree assault against Shing. See Hagos, ¶ 11. We can’t get there.
¶ 41 The evidence could reasonably have supported the inference
that when Gallegos struck Shing he was acting in defense of J.W.
and that he was doing so on the basis that he reasonably believed
Shing was going to imminently use unlawful physical force —
18 specifically, further unlawful sexual contact. This evidence
includes Gallegos’ testimony that he attacked Shing to protect J.W.
and J.W.’s testimony that Shing had poked her breast right before
Gallegos attacked Shing. And this isn’t definitively contradicted by
the video — which does show J.W. still in very close proximity to
Shing when Gallegos initiated the attack.
¶ 42 The element that presents the closest call is whether Gallegos
used a degree of force that he reasonably believed to be necessary
for such a purpose. To be sure, there is a strong case to be made
that the use of the wrench wasn’t reasonable — and that Gallegos
didn’t believe otherwise. But as discussed above, there is
conflicting evidence on this point. Indeed, Gallegos testified that he
wasn’t trying to hurt Shing but, instead, was trying to “scare him”
and get him out of the bar.
¶ 43 The People argue that the error was harmless because
Gallegos’ use of force was objectively unreasonable. Specifically,
the People argue that because Gallegos testified that he didn’t see
Shing touch J.W., and the video doesn’t clearly show the contact,
Gallegos’ jump to violence cannot be reasonable. But the People’s
interpretation ignores Gallegos’ testimony that he believed Shing
19 “groped” J.W., the video showing that J.W. was still within
proximity of Shing when Gallegos initiated the attack, and Gallegos’
testimony that he wasn’t trying to hurt Shing.
¶ 44 Simply put, while this may not have been the strongest
defense of a third person case, we also can’t say with the requisite
confidence that the jury would have rejected the defense if properly
instructed. To conclude that the error was harmless beyond a
reasonable doubt, we have to be able to say that the verdict
rendered “was surely unattributable to the error.” People v.
Mendenhall, 2015 COA 107M, ¶ 49 (quoting Blecha v. People, 962
P.2d 931, 942 (Colo. 1998)). Because of the conflicting evidence, we
can’t reach this conclusion. Accordingly, the People have not
proved that the instructional error was harmless beyond a
reasonable doubt; therefore, reversal is required on Gallegos’ first
degree assault conviction.
e. The Error Requires Reversal of Gallegos’ Remaining Convictions
¶ 45 Gallegos contends that the trial court’s failure to instruct the
jury on his defense of a third person theory for the first degree
assault conviction also requires reversal of his remaining
20 convictions, despite not being an affirmative defense available to
those charges. Specifically, he argues that defense of a third person
is an elemental traverse for the reckless endangerment of Shing
charge. For the second degree assault and reckless endangerment
of McDermott charges, Gallegos argues that the jury didn’t have all
the necessary information about how the fight started with Shing,
so it couldn’t properly evaluate his defenses against these charges.
The People argue that because the jury was instructed to consider
each count as a separately charged and distinct offense, an error in
one of the convictions can’t lead to an error in the others. The
People further argue that the jury’s rejection of Gallegos’ self-
defense affirmative defense for the charges concerning Gallegos’
conduct toward McDermott proves that the jury couldn’t find
Gallegos’ conduct reasonable — even if it had been instructed on a
defense of a third person affirmative defense for Gallegos’ conduct
toward Shing. We agree with Gallegos.
¶ 46 Defense of a third person isn’t an affirmative defense available
for the crimes of recklessness because it is impossible for a person
to act justifiably — as a theory of defense of a third person
requires — and also act with a conscious disregard of unjustifiable
21 risk — as recklessness requires. See People v. Luna, 2020 COA
123M, ¶ 11. Instead, defense of a third person acts as an elemental
traverse for crimes of recklessness. Id. Gallegos didn’t request a
defense of a third person affirmative defense for the second degree
assault of McDermott charge. Accordingly, the trial court’s error of
not instructing the jury on defense of a third person didn’t implicate
Gallegos’ constitutional rights in regards to the second degree
assault or either of the reckless endangerment charges.
¶ 47 We review nonconstitutional trial errors that were preserved
for harmless error, and we only reverse if the error “substantially
influenced the verdict or affected the fairness of the trial
proceedings.” Hagos, ¶ 12 (citation omitted).
¶ 48 Because the jury wasn’t instructed on defense of a third
person, it didn’t have all the necessary information to determine if
Gallegos’ acted recklessly toward Shing. There is a reasonable
possibility that if the jury had been given the instruction, it could
have found that he didn’t act recklessly, but was instead justified in
his actions. Therefore, the error substantially influenced the
reckless endangerment of Shing verdict and it must be reversed.
22 ¶ 49 Turning to the charges for Gallegos’ conduct toward
McDermott, the jury similarly didn’t have all the necessary
information to reach a fair verdict on these charges either. Indeed,
the jury rejected Gallegos’ theory of self-defense for both the second
degree assault charge and the reckless endangerment charge. The
self-defense instruction, however, included language about the
initial aggressor exception. Therefore, it’s possible that the jury
rejected Gallegos’ self-defense theory based on its perception that
he was the initial aggressor. Had the jury been properly instructed
on Gallegos’ defense of a third person theory for his attack on
Shing, the jury could well have determined that he wasn’t the initial
aggressor and was properly defending himself against McDermott.
¶ 50 Accordingly, the trial court’s error in refusing to instruct the
jury on the defense of a third person affirmative defense
substantially affected all of the verdicts, and thus they must all be
reversed.
B. Gallegos’ Remaining Arguments
¶ 51 Because we reverse based on the trial court’s refusal to
instruct the jury on Gallegos’ defense of a third person affirmative
defense and Gallegos’ remaining arguments aren’t likely to arise in
23 the same posture on remand, we don’t reach the merits of the
remaining arguments.
III. Disposition
¶ 52 For the reasons set forth above, we reverse the judgment of
conviction and remand the case to the trial court for a new trial.
JUDGE SCHOCK and JUDGE LUM concur.