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People v. Roberts-Bicking.

2021 COA 12. No. 17CA1396.  Criminal Law—Jury Instructions—Self-Defense—Affirmative Defense Exception—Apparent Necessity—Defense Against Multiple Assailants—Initial Aggressor—Provocation—Unanimity.

February 11, 2021

Defendant had an altercation with the victim and the victim’s brother. Defendant shot the victim six times with a pistol and injured him, and he hit the victim’s brother over the head with the pistol. The issue at trial was whether defendant acted in self-defense. The jury acquitted defendant of attempted first degree murder but convicted him of attempted second degree murder and first degree assault and menacing.

On appeal, defendant contended that the trial court reversibly erred in rejecting proposed self-defense instructions on apparent necessity and defense against multiple assailants. Although the stock jury instruction on self-defense was not sufficient in this case, the supplemental instruction cured any deficiency by adequately informing the jury that it must consider the reasonableness of defendant’s beliefs and actions under the totality of the circumstances. Accordingly, the trial court did not err by declining to give the proposed self-defense instructions.

Defendant also argued that the trial court should not have given an instruction on the initial aggressor or provocation exceptions to defendant’s self-defense. In the alternative, defendant argued that the court should have instructed the jury that they must unanimously agree on which exception, if either, was applicable. Here, there was sufficient evidence that defendant may have initiated the physical conflict by using or threatening the imminent use of unlawful physical force, so the initial aggressor instruction was warranted. Further, defendant’s statement “If you want to [expletive] with me, try it” could have been interpreted as a warning or invitation provoking an attack. Therefore, there was sufficient evidence to instruct the jury on the provocation exception. Finally, the exceptions are not mutually exclusive, and jury unanimity is not required with respect to alternate means of satisfying an element of an offense. Thus, the trial court did not err.

The judgment of conviction was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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