v. Roberts-Bicking

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

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 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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