Peo v. Gallegos

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

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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.

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¶ 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

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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.

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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

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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.

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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 —

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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

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“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.

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