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 law, and we review the
sufficiency of a defendant's evidence de novo.
Id. at 784. If a defendant meets this standard, and
a trial court refuses to give an affirmative defense
instruction, then the prosecution's burden of proof has
been impermissibly lowered, implicating a defendant's
constitutional rights. See id. Such an error, if
preserved, is subject to constitutional harmless error
review. See Griego v. People, 19 P.3d 1, 8 (Colo.
2001) (indicating that "when a trial court misinstructs
the jury on an element of an
offense, either by omitting or misdescribing that element,
that error is subject to constitutional harmless" error
review). These errors necessitate reversal unless the error
was harmless beyond a reasonable doubt. See Hagos v.
People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119.
B.
Affirmative Defenses and Traverses
¶17
This court, generally, has recognized two types of defenses
in criminal cases: (1) affirmative defenses and (2)
traverses. People v. Pickering, 276 P.3d 553, 555
(Colo. 2011). Ultimately, whether an asserted defense
constitutes an affirmative defense or a traverse dictates the
appropriate burden of proof. Roberts, ¶ 22, 399
P.3d at 705.
¶18
In asserting an affirmative defense, a defendant admits to
the conduct that gives rise to the charged offense.
Id. at ¶ 20, 399 P.3d at 705; People v.
Huckleberry, 768 P.2d 1235, 1238 (Colo. 1989). And in
such a case, a defendant essentially acknowledges
"presence at and participation in the event" but
claims that they were legally justified in doing so, and that
justification is "sufficient to render the participant
exempt from criminal responsibility."
Huckleberry, 768 P.2d at 1239. When a defendant
presents evidence properly raising an affirmative defense,
the defense becomes an additional element of the charged
offense, requiring the trial court to provide a jury
instruction indicating that the prosecution must prove the
defense's inapplicability beyond a reasonable doubt.
Roberts, ¶ 22, 399 P.3d at 705.
¶19
Conversely, a traverse negates one or more elements of the
offense, serving to undermine or cast doubt on the
possibility that a defendant committed the charged offense.
Id. at ¶ 21, 399 P.3d at 705. However, a
defendant who presents evidence that negates one or more
elements of the charged offense "is not entitled to an
affirmative defense instruction." Id. at ¶
22, 399 P.3d at 705 (quoting Pickering, 276 P.3d at
555). Though, when a defendant is not entitled to an
affirmative defense instruction for self-defense, a defendant
may present evidence, when relevant, that they were acting in
self-defense, and "the court shall instruct the jury
with a self-defense law instruction." §
18-1-704(4). Then it is up to the jury to consider the
traverse evidence, along with the self-defense law
instruction, to decide whether the prosecution has proven
each element of the offense beyond a reasonable doubt.
Roberts, ¶ 22, 399 P.3d at 705.
¶20
With these principles in mind, we next review the underlying
charge in this case-harassment-and the requirements that a
defendant must satisfy to assert a claim of self-defense as
an affirmative defense.
C.
Harassment and Self-Defense
¶21
Under section 18-9-111(1)(a), when a person, acting
"with intent to harass, annoy, or alarm another[, ] . .
. [s]trikes, shoves, kicks, or otherwise touches a person or
subjects [them] to physical contact," they commit the
crime of harassment. To be convicted of harassment, a
defendant must have the specific
intent to harass, annoy, or alarm. See §
18-1-501(5), C.R.S. (2021) ("All offenses defined in
this code in which the mental culpability requirement is
expressed as 'intentionally' or 'with intent'
are declared to be specific intent offenses.").
¶22
A person acts in self-defense, under section 18-1-704(1), by
"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 in doing so, a person
"may use a degree of force which he reasonably believes
to be necessary for that purpose." Id. So long
as a defendant "present[s] some credible evidence"
to support the defense, a defendant is entitled to have the
jury instructed on self-defense as an affirmative defense.
DeGreat, ¶ 22, 428 P.3d at 545. And, as noted,
the ultimate goal in presenting this affirmative defense is
"to justify, excuse, or mitigate" a defendant's
commission of the act. Id. at ¶ 21, 428 P.3d at
545.
¶23
Because a defendant must only present "some credible
evidence" in support of the proffered defense, the
burden is rather low. As this court has previously stated,
"a defendant may satisfy this burden even if the only
supporting evidence is 'highly improbable' testimony
from the defendant . . . ." Id. at ¶ 22,
428 P.3d at 545 (quoting Lybarger v. People, 807
P.2d 570, 579 (Colo. 1991)). Ultimately, so long as a
defendant has provided some credible evidence to allow a
reasonable jury to conclude that the defendant committed the
offense in
self-defense, that is sufficient to require a court to
provide an affirmative defense instruction. See id.
at ¶ 31, 428 P.3d at 546.
D.
Application
¶24
So, can a person intend to alarm someone in self-defense? At
first blush, the concept seems implausible, if not downright
nonsensical. However, upon closer examination, we cannot
conclude that the two concepts are always, in every
circumstance, mutually exclusive. For example, some
jurisdictions have found that a person may fire a warning
shot into the air to alarm an initial aggressor while
simultaneously doing so in self-defense (i.e., to prevent an
altercation from escalating further). See, e.g.,
State v. Hill, 433 S.E.2d 848, 849 (S.C. 1993)
(holding that there was ample evidence that the defendant
fired the gun into the air in self-defense to distract the
alleged aggressor). Or, take for instance a circumstance in
which a person kicks a car door to alarm or distract the
initial aggressor so that they can then escape from an
impending attack. See, e.g., People v.
Coahran, 2019 COA 6, ¶¶ 1-2, 436 P.3d 617, 619
(determining that the defendant acted in self-defense, and
was thus entitled to an affirmative defense instruction, by
kicking her ex-boyfriend's car door in order to escape an
altercation). While those are not the particular facts before
us, we are mindful that there are factual circumstances that
could lead a reasonable jury to find that a defendant was
acting
with the intent to defend themself by alarming their
attacker. Indeed, that is what Pearson contends happened
here.
¶25
This court, in Roberts, did not address whether the
charge of harassment, as a matter of law, is always
inconsistent with self-defense, or whether the affirmative
defense of self-defense could never apply to harassment.
¶ 29, 399 P.3d at 706. Similarly, the district court
here concluded that, because Pearson's case was seemingly
identical to Roberts, an interpretation as to the
general applicability of self-defense as an affirmative
defense to harassment was not necessary. See id.
¶26
In reaching this conclusion, the district court reasoned that
because Pearson did not admit that he struck O'Kelly with
the main or ultimate intent to alarm him, rather
than with the main or ultimate intent to defend
himself, he did not properly admit every element of the
offense. However, that was not this court's conclusion in
Roberts. We have never required such an intent to
subordinate the other; rather, we merely require both to be
present and for one to justify, excuse, or mitigate the
other. See, e.g., DeGreat, ¶ 21, 428
P.3d at 545 (holding that asserting the intent to act in
self-defense as an affirmative defense "seeks to
justify, excuse, or mitigate" the intent required of the
act, as well as other elements of the charge);
Roberts, ¶ 20, 399 P.3d at 705 (same);
Pickering, 276 P.3d at 555 (same);
Huckleberry, 768 P.2d at 1238 (same).
¶27
Though the district court likened Pearson's case to
Roberts in concluding that Pearson was not entitled
to an affirmative defense instruction, we note some key
distinctions. In Roberts, the defendant was charged
with harassment following an incident with her estranged
husband, in which she struck him in the face several times.
¶ 3, 399 P.3d at 703. Roberts's defense counsel, at
the close of evidence, tendered a jury instruction providing
that self-defense constituted an affirmative defense to the
charge of harassment, which the trial court rejected.
Id. at ¶¶ 8-10, 399 P.3d at 703-04. This
was the correct ruling because, during trial, Roberts
expressly denied striking her husband with the
intent to harass, annoy, or alarm him. Id. at
¶ 7, 399 P.3d at 703. Rather, she stated that her
only intent was "just to get as far away from
him as [she] could." Id. (alteration in
original).
¶28
In this case, in contrast, Pearson testified that although he
struck O'Kelly in the face, he did so "to make sure
[O'Kelly] didn't try to push [him] again," and
he purposely tempered the amount of force that he used.
Defense counsel reiterated this point in closing argument.
And while Pearson did not expressly testify that he struck
O'Kelly because he intended to defend himself by alarming
O'Kelly, the trial court had already rejected defense
counsel's argument that the jury should be instructed as
to self-defense in connection with the harassment charge, so
admitting that particular element outright would have been at
Pearson's peril.
¶29
The practical effect of this pretrial ruling was to box
Pearson in, requiring that he either rely on self-defense as
a traverse or not at all. That is, if Pearson admitted to
possessing the intent to alarm, he couldn't also argue,
as an element-negating traverse, that he didn't possess
the intent to alarm. Thus, Pearson had no real alternative
but to completely reverse course on his theory of the case.
¶30
If Pearson had not been forced to change course, his
testimony as to his intent in hitting O'Kelly would have
been more than sufficient to warrant providing a self-defense
as an affirmative defense instruction as to the harassment
charge. We are also persuaded that, despite being
strategically confined from arguing at trial that Pearson
struck O'Kelly with the express intent to alarm him,
Pearson presented sufficient evidence-satisfying his burden
to present some credible evidence-to require the trial court
to provide an instruction on self-defense as an affirmative
defense to harassment. See DeGreat, ¶ 31, 428
P.3d at 546. Pearson testified that, as he approached,
O'Kelly was yelling and cursing at him and attempted to
hit him. Pearson explained that he "was worried
[O'Kelly] was going to keep going"; and so he
"didn't use all [his] force" when he struck
O'Kelly, just a reasonable degree of force "to make
sure [O'Kelly] didn't try to push [him] again."
Because Pearson can satisfy this burden even by way of his
own testimony-despite how probable or improbable that
testimony might be-this
evidence, alone, would be enough to afford Pearson the right
to an affirmative defense instruction. Id. at ¶
22, 428 P.3d at 545.
¶31
While we cannot know how the jury might have viewed an
affirmative defense instruction as to the harassment charge,
we do know that the jury acquitted Pearson of the assault
charge on which it did receive such an instruction. And
though we do not express any opinion on the merits of
Pearson's defense, we conclude that Pearson presented
some credible evidence to allow a reasonable jury to find
that he struck O'Kelly in the face with the intent to
alarm and that he was justified in using such force, which he
claimed to have tempered in self-defense. Thus, the trial
court should have provided the jury with an instruction on
self-defense as an affirmative defense to Pearson's
harassment charge. And because such an error improperly
lowered the prosecution's burden of proof, it was not
harmless beyond a reasonable doubt. See Garcia, 113
P.3d at 784.
¶32
Under the circumstances of this case, we determine that the
trial court should have instructed the jury on self-defense
as an affirmative defense to the harassment charge, thus we
need not address Pearson's contention as to a traverse
instruction.
III.
Conclusion
¶33
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 acted with intent
to alarm, as outlined in section 18-9-111(1)(a), as a means
of self-defense. We also conclude that the district court
erred by affirming the trial court's determination that
Pearson was not entitled to an instruction on self-defense as
an affirmative defense to the harassment charge under section
18-9-111(1)(a). Accordingly, we reverse the district
court's judgment and remand the case with instructions
that the district court return the matter to the trial court
for further proceedings consistent with this opinion.
CHIEF
JUSTICE BOATRIGHT dissents.
CHIEF
JUSTICE BOATRIGHT, dissenting.
¶34
As Mike Tyson famously said: "Everybody has a plan until
they get punched in the mouth."[1] That is because getting hit
in the mouth evokes a myriad of emotions: fear, confusion,
apprehension, anger, shock, and possibly many other emotions,
including alarm. But make no mistake, when Thomas Pearson
punched Timothy O'Kelly, Pearson's conscious
objective was to stop O'Kelly from attacking him. He was
not, as the majority posits, intending only to alarm
O'Kelly. At that moment, Pearson wanted O'Kelly to
get a new plan.
¶35
Pearson testified that he punched O'Kelly because
O'Kelly hit him in the face and he "was worried
[O'Kelly] was going to keep going." But Pearson also
testified that he "didn't use all [his] force,"
only "enough to make sure [O'Kelly] didn't try
to push [him] again." If his testimony is to be
believed, then Pearson's punch was intended to deter
O'Kelly from continuing his attack.
¶36
However, in concluding otherwise-that Pearson's intent
was to merely alarm O'Kelly-the majority holds that a
"defendant can assert self-defense as an
affirmative defense to harassment, so long as there is some
credible evidence to allow a reasonable jury to find that
they acted with intent to alarm." Maj. op. ¶ 1.
While I follow the logic of the majority, I disagree. Because
I understand Pearson's conscious objective was to stop
O'Kelly, his defense is not an affirmative defense to
harassment. Rather, the defense traverses the intent element
of harassment such that it negates the mens rea, effectively
refuting the possibility that the defendant could be
convicted of harassment. In my view, the trial court and
district court correctly identified Pearson's defense as
a traverse.
¶37
As the majority accurately explained, this court has
long-settled definitions of the two main defenses to criminal
charges: affirmative defenses and traverses. See People
v. Pickering, 276 P.3d 553, 555 (Colo. 2011)
("There are, generally speaking, two types of defenses
to criminal charges . . . 'affirmative' defenses . .
. [and] 'traverses' . . . ."); see also
People v. Huckleberry, 768 P.2d 1235, 1238 (Colo. 1989).
Affirmative defenses "admit the defendant's
commission of the elements of the charged act, but seek to
justify, excuse, or mitigate the commission of the act,"
while traverses "effectively refute the possibility that
the defendant committed the charged act by negating an
element of the act." Pickering, 276 P.3d at
555.
¶38
Practically speaking, if the presented evidence raises the
issue of self- defense as an affirmative defense, "the
affirmative defense effectively becomes an
additional element," and the prosecution must prove each
element of the charged offense beyond a reasonable doubt.
Id. Additionally, the "trial court must
instruct the jury that the prosecution bears the burden of
proving beyond a reasonable doubt that the affirmative
defense is inapplicable." Id. However, if the
"presented evidence raises the issue of an elemental
traverse, the jury may consider the evidence in determining
whether the prosecution has proven the element implicated by
the traverse beyond a reasonable doubt." Id.
Thus, for a traverse, the jury may consider whether the
evidence presented creates a reasonable doubt that an element
of the charged offense has not been met.
¶39
Here, the element implicated is the mens rea required for a
harassment conviction. Harassment is, by definition, a
specific intent crime because "the mental culpability
requirement is expressed as 'intentionally' or
'with intent.'" See § 18-1-501(5),
C.R.S. (2021); § 18-9-111(1)(a), C.R.S. (2021)
("[A] person commits harassment if, with intent
to harass, annoy, or alarm another person" that person
"[s]trikes, shoves, kicks, or otherwise touches a person
. . . ." (emphasis added)). "A person acts
'intentionally' or 'with intent' when his
conscious objective is to cause the specific result
proscribed by the statute defining the offense," §
18-1-501(5) (emphasis added), or when the person's
"purpose [is] to accomplish a particular result,"
In re Roose, 69 P.3d 43, 48 (Colo. 2003). Therefore,
for the prosecution to prove the mens rea element of
harassment beyond a reasonable doubt, it must
show that a person's "conscious objective" must
be to harass, annoy, or alarm another person. And for the
affirmative defense to apply, Pearson's intent in
striking O'Kelly must have been to harass, annoy, or
alarm O'Kelly.
¶40
As such, the main inquiry thus becomes: What "particular
result" did Pearson intend when he punched O'Kelly?
More specifically, did Pearson intend his punch to result in
O'Kelly stopping his attack? Or did Pearson intend his
punch to only result in O'Kelly feeling alarmed? The
answer to these questions, I submit, is the difference
between an affirmative defense and a traverse.
¶41
Although Pearson and O'Kelly each say the other struck
first, at some point, it is undisputed that Pearson punched
O'Kelly. Pearson testified that his purpose in punching
O'Kelly was self-defense because he was worried that
O'Kelly would strike him again. Further, Pearson
testified that he only used enough force to ensure
O'Kelly did not try to push him again. In short, Pearson
testified that his conscious objective was to deter
O'Kelly from continuing his attack. That was the
result that Pearson intended.
¶42
Hence, I believe the majority conflates Pearson's
ultimate conscious objective when it states that Pearson
"struck O'Kelly in the face with the intent to alarm
. . . in self-defense." Maj. op. ¶ 31. He
wasn't trying to merely alarm O'Kelly. Sure, by
punching O'Kelly in the face, he may have, in
fact, alarmed
O'Kelly[2]-but that was not his goal. Frankly, I
believe that Pearson did not care what emotion O'Kelly
felt when he was punched, so long as O'Kelly stopped his
alleged attack. Or as Mike Tyson might put it: Pearson wanted
O'Kelly to come up with a different plan.
¶43
For that reason, I cannot agree with the majority that
Pearson's conscious objective in this case was to alarm
O'Kelly. Rather, in my view, Pearson's objective was
ultimately to stop O'Kelly. Under my rationale, Pearson
could present the exact same defense that he did at trial.
The only difference would be how the jury is instructed.
¶44
In sum, I disagree with the majority's holding that
self-defense is an affirmative defense to harassment. Rather,
self-defense traverses the intent element of harassment, such
that it effectively refutes the possibility that the
defendant could be convicted of harassment because it negates
the mens rea.
¶45
For the above reasons, I respectfully dissent. Accordingly, I
would affirm the trial court and remand the case for further
proceedings.
---------
Notes:
[1] This opinion is limited to section
18-9-111(1)(a), C.R.S. (2021). For ease of reading, we refer
to this provision of the statute as "harassment"
from here forward.
[2] We are intentionally using the
singular "they" and "their" throughout
this opinion.
[3] We granted certiorari to review the
following issues:
1. Whether the district court erred in finding no
reversible error occurred where the trial court ruled that
self-defense was not an affirmative defense to the
specific-intent crime of Harassment, C.R.S. §
18-9-111(1)(a), and failed to properly instruct the jury on
the affirmative defense.
2. If the trial court was correct in finding
self-defense as an element-negating traverse rather than an
affirmative defense, whether the district court erred in
finding no reversible error occurred when the trial court
failed to instruct the jury on such a traverse.
[1] Mike Berardino, Mike Tyson
Explains One of His Most Famous Quotes, SunSentinel,
(Nov. 9, 2012),
https://www.sun-sentinel.com/sports/fl-xpm-2012-11-09-sfl-mike-tyson-explains-one-of-his-most-famous-quotes-20121109-story.html
[https://perma.cc/DVK4-SJ5L].
[2] In my view, alarming an attacker alone
does not guarantee that an attack will stop. In fact,
alarming someone may escalate the situation. That is why the
response to a stressful event, like getting punched in the
face, is called the fight-or-flight response.