     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
                                                         September 12, 2019
                               2019COA143

No. 16CA0218, People v. Mosely — Criminal Law — Juries —
Unanimity — Jury Instructions — Defense of Person;
Affirmative Defenses — Self-Defense; Constitutional Law — Due
Process

     A division of the court of appeals considers whether a jury

must unanimously decide which element of self-defense the

prosecution disproved beyond a reasonable doubt. The division

concludes it must, based on Colorado law granting defendants the

right to a unanimous jury instruction. § 16–10–108, C.R.S. 2018.

     It reasons that, by not requiring the jury to agree on which

element of self-defense the prosecution disproved, the trial court

impermissibly lowers the prosecution’s burden of proof and leaves

open the possibility of a conviction based on competing theories of

the law. The division concludes that, because this violates a
defendant’s right to due process of law, such an error is not

harmless beyond a reasonable doubt.
COLORADO COURT OF APPEALS                                         2019COA143


Court of Appeals No. 16CA0218
Arapahoe County District Court No. 15CR499
Honorable Carlos A. Samour, Jr., Judge
Honorable Elizabeth Beebe Volz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clarence Mosely,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division I
                        Opinion by JUDGE TAUBMAN
                       Hawthorne and Grove, JJ., concur

                        Announced September 12, 2019


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. O’Harris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Clarence Mosely, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of second

 degree assault and felony menacing. He contends that the district

 court violated his right to due process when, in response to a juror’s

 question, it erroneously instructed the jurors that they need not

 unanimously agree on the basis on which the prosecution disproved

 Mosely’s affirmative defense of self-defense. Because we agree with

 that contention, we reverse his felony menacing conviction and

 remand to the district court for a new trial. However, we affirm the

 conviction for second degree assault because the instruction did not

 apply to that charge and Mosely’s other convictions fail.

                            I. Background

¶2    Police officers removed Mosely from Shotgun Willie’s, a strip

 club in Glendale, Colorado, in February 2015 after he exhibited

 confrontational and aggressive behavior toward other patrons.

¶3    Ten to twenty minutes after his ejection from the premises,

 around 1 a.m., the victim, T.K., and a group of men celebrating a

 bachelor party encountered Mosely in the parking lot as they left

 the strip club to board their party bus. After an aggressive verbal



                                   1
 exchange between Mosely and another member of the party, T.K.

 intervened, and a physical altercation erupted. During the fight,

 Mosely stabbed T.K. in the abdomen with a small folding knife.

 Members of the party restrained and purportedly hit Mosely until

 off-duty law enforcement officers inside the strip club gained control

 of the situation. T.K. was transported to a nearby hospital.

                         II. Jury Instructions

¶4    Mosely asserts that the trial court erred in answering a juror’s

 question by explaining that the jury need only unanimously agree

 that the prosecution disproved beyond a reasonable doubt at least

 one of the exceptions to self-defense to felony menacing; 1 it need

 not agree which of the exceptions was disproved. We agree and

 conclude that the error was not harmless beyond a reasonable

 doubt.




 1 The self-defense instruction also pertained to a charge of first
 degree assault for which Mosely was acquitted; it did not apply to
 the second degree assault charge of which he was convicted.
 However, for the first time in the reply brief, defense counsel asserts
 that the jury instructions and response to the question also
 impacted Mosely’s second degree assault conviction. We do not
 address arguments raised for the first time in a reply brief. See
 People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990).

                                    2
                          A. Relevant Facts

¶5    The trial court instructed the jury on the elements of the

 offense of menacing:

           The elements of the crime of Menacing, as
           charged in this case, are:

           1. That the defendant,
           2. in the State of Colorado, at or about the
           date and place charged,
           3. knowingly,
           4. by any threat or physical action,
           5. placed or attempted to place another person
           in fear of imminent serious bodily injury,
           6. and that the defendant’s conduct was not
           legally authorized by the affirmative defense [of
           self-defense] in Instruction No. 17.

           After considering all the evidence, if you decide
           the prosecution has proven each of the
           elements beyond a reasonable doubt, you
           should find the defendant guilty of
           Menacing . . . .

¶6    The court also instructed the jury on self-defense:

           The evidence presented in this case has raised
           the affirmative defense of “defense of person”
           or “self-defense,” as a defense to . . . Menacing.
           The defendant 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

                                   3
           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,
           and
           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. The prosecution has the
           burden to prove, beyond a reasonable doubt,
           that the defendant’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 . . . .

 (Emphasis added.)

¶7    The court also provided the jury with other instructions, as

 well as the standard unanimity instruction, which stated in part:

           The verdict for each charge must represent the
           considered judgment of each juror, and it must
           be unanimous. In other words, all of you must
           agree on all parts of it. This requirement also
           applies to any determination that you make in
           response to a verdict question which you
           conclude should be answered.

¶8    During deliberations, a juror submitted a question to the

 court, asking,


                                  4
            With regard to [the self-defense instruction],
            [do] we have to unanimously agree on at least
            one of the factors, e.g. #1[,] or do we need to
            unanimously agree that individually at least
            one of the factors 1-4 was disproved[?]

 The trial court discussed the question with defense counsel

 and the prosecutor. Over defense counsel’s objection, the trial

 court responded to the juror’s question as follows:

            Dear Members of the Jury, . . . . In order for
            you to decide that the prosecution has met its
            burden of proof with respect to the affirmative
            defense of defense of person or self-defense,
            you have to unanimously agree that the
            prosecution has disproven at least one of the
            numbered conditions. However, there is no
            requirement that you unanimously agree on
            which numbered condition or conditions have
            been disproven.

                         B. Standard of Review

¶9    We review jury instructions and a court’s response to juror

 questions de novo to determine whether, as a whole, they

 accurately informed the jury of the governing law. Riley v. People,

 266 P.3d 1089, 1092-93 (Colo. 2011). Whether and how to answer

 a juror’s question lie within the trial court’s discretion, and we do

 not reverse absent a determination that the trial court abused its




                                    5
  discretion. People v. Gwinn, 2018 COA 130, ¶ 31, 428 P.3d 727,

  735.

                            C. Applicable Law

¶ 10     The prosecutor must prove beyond a reasonable doubt every

  element of a charged offense. People v. Griego, 19 P.3d 1, 7 (Colo.

  2001). A defendant asserting an affirmative defense does not deny

  the commission of the charged offense; rather, he or she concedes

  committing the charged act but claims legal justification in doing

  so, given the circumstances. Roberts v. People, 2017 CO 76, ¶ 20,

  399 P.3d 702, 705. In Colorado, the court treats the defense as

  another element of the charged offense. People v. Garcia, 113 P.3d

  775, 784 (Colo. 2005).

¶ 11     When a defendant presents sufficient evidence to raise an

  affirmative defense, the prosecutor must prove not only that the

  defendant committed the charged offense, but also the nonexistence

  of the affirmative defense. People v. Reed, 932 P.2d 842, 844 (Colo.

  App. 1996). If the prosecution does not disprove the affirmative

  defense beyond a reasonable doubt, the defendant is “exempt from

  criminal responsibility for the consequences of the conduct.”



                                     6
  Roberts, ¶ 20, 399 P.3d at 705 (quoting People v. Huckleberry, 768

  P.2d 1235, 1239 (Colo. 1989)).

¶ 12   As relevant here, self-defense is an affirmative defense to

  felony menacing under section 18-3-206, C.R.S. 2018. See Riley,

  266 P.3d at 1093. Colorado law entitles a defendant to a

  unanimous jury verdict and due process of law. See Colo. Const.

  art. II, § 25; § 16-10-108, C.R.S. 2018; Crim. P. 31(a)(3); Griego, 19

  P.3d at 7. “Unanimity means only that each juror agrees that each

  element of the crime charged has been proved to that juror’s

  satisfaction beyond a reasonable doubt.” People v. Linares-Guzman,

  195 P.3d 1130, 1134 (Colo. App. 2008).

¶ 13   To facilitate a jury’s decision-making, the trial court is

  obligated to clarify any confusion the jury expresses regarding any

  element of the offense charged or law bearing on the defendant’s

  innocence or guilt. Leonardo v. People, 728 P.2d 1252, 1256 (Colo.

  1986). “When a jury inquires about the meaning of a particular

  instruction, the court should provide a supplemental instruction

  sufficient to clarify the jury’s uncertainty.” People v. Harding, 17

  P.3d 183, 186 (Colo. App. 2000).



                                     7
                               D. Analysis

¶ 14   As noted, the prosecution must prove every element of an

  offense beyond a reasonable doubt, and self-defense must be

  treated as an additional element to be disproved.

¶ 15   While the jury must unanimously agree on all elements of a

  crime, it 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 also People v.

  Davis, 2017 COA 40M, ¶ 21, ___ P.3d ___, ___ (“Though the

  prosecution alleged numerous overt acts in furtherance of the single

  conspiracy, that did not require unanimous agreement by the jurors

  as to the precise overt act defendant committed.”).

¶ 16   Though no Colorado court has addressed the specific issue

  before us, our jurisprudence reveals that, to establish a self-defense

  exception — such as mutual combat or provocation — the

  prosecution must prove the elements of the exception beyond a




                                    8
  reasonable doubt. 2 See Kaufman v. People, 202 P.3d 542, 561

  (Colo. 2009) (detailing the prosecution’s burden to prove mutual

  combat as an exception to self-defense). Similarly, in People v. Rios,

  2014 COA 90, ¶ 51, 338 P.3d 495, 504, a division of this court held,

  in considering the combat-by-agreement exception to self-defense,

  that

              a combat-by-agreement instruction that does
              not state the elements that must be
              established or that the prosecution has the
              burden to prove these elements beyond a
              reasonable doubt is erroneous because it does
              not adequately inform the jury how to apply
              the statutory exception to the facts of the case.

¶ 17     In this regard, People v. Silva, 987 P.2d 909 (Colo. App. 1999),

  is instructive. There, as here, the division considered the

  provocation and initial aggressor exceptions to self-defense. The

  division explained that under section 18-1-704(3)(a), C.R.S. 2018,

  “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




  2In some instances, the prosecution must prove the existence of an
  exception to self-defense to carry its burden to disprove self-defense
  beyond a reasonable doubt.

                                      9
  the defendant with the excuse to injure or kill the defendant.” Id. at

  914. Significantly, the division added, “[i]n contrast to the initial

  aggressor limitation, the provocation limitation applies in situations

  where the defendant was not the initial aggressor.” Id. Because the

  Silva division concluded that no evidence showed that the

  defendant intended to provoke the victims or their friend, it held

  that giving the provocation instruction to the jury constituted

  reversible error.

¶ 18   Accordingly, when the division considered the propriety of

  instructing the jury on the initial aggressor instruction to

  self-defense, it did not need to address the issue presented here —

  whether jurors can be instructed on both the provocation and initial

  aggressor exceptions to self-defense without a requirement that

  they unanimously agree on one of those exceptions.

¶ 19   First, we conclude that absent the juror question here, the

  unanimity instruction given to the jurors was sufficient to advise

  them that they had to agree unanimously as to the applicability of

  either the provocation or initial aggressor exception to self-defense.

  Based on the unanimity instruction, the jurors also could have



                                     10
  concluded that neither exception applied, but that the prosecution

  had disproved beyond a reasonable doubt one or both of the first

  two elements of the self-defense instruction. That is, without

  reaching the self-defense exceptions, the jurors could have

  concluded that Mosely (1) did not use physical force to defend

  himself from what he reasonably believed to be the use or imminent

  use of unlawful physical force by another person, or (2) did not use

  a degree of force which he reasonably believed to be necessary to

  defend himself.

¶ 20   We reach this conclusion because the unanimity instruction

  told the jurors that “all of you must agree on all parts of it.” We

  interpret this to mean that absent the juror’s question, the jurors

  would be required to unanimously agree as described above.

  Nevertheless, because the trial court answered the juror’s question

  in a manner that conflicted with the unanimity instruction, some

  jurors might have concluded that the provocation exception applied,

  while others concluded that the initial aggressor instruction

  applied. This was improper.




                                    11
¶ 21   In determining whether jurors must be instructed that they

  must unanimously agree on one of these exceptions, we consider

  significant the Silva division’s observation that the provocation

  exception to self-defense applies when the defendant was not the

  initial aggressor. This statement implies that the provocation and

  initial aggressor exceptions are mutually exclusive.

¶ 22   That these exceptions to self-defense are mutually exclusive is

  supported by examination of section 18-1-704(3), which sets forth

  three exceptions to self-defense — provocation, initial aggressor,

  and mutual combat. 3 These exceptions are set forth in the

  disjunctive, indicating that only one of them must be satisfied for

  the prosecution to disprove the self-defense exception.

¶ 23   Accordingly, we conclude that the prosecution did not

  establish beyond a reasonable doubt that the jurors unanimously

  agreed as to how the prosecution disproved the affirmative defense

  of self-defense. Our conclusion is supported by case law in a




  3Because the mutual combat exception is not involved here, we
  need not determine whether it and the other two exceptions are
  mutually exclusive.

                                    12
  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. See People v. Frye, 898 P.2d 559, 569 n.13 (Colo.

  1995); People v. Delgado, 2016 COA 174, ¶¶ 15-16, 410 P.3d 697,

  700 (cert. granted Dec. 11, 2017).

¶ 24   Nevertheless, the People urge us to adopt the reasoning of the

  Court of Appeals of Texas in Harrod v. State, 203 S.W.3d 622, 628

  (Tex. App. 2006), in which the court held that “the jury is not

  required to agree unanimously on the specific component of

  self-defense on which it is not persuaded.” However, Texas’

  self-defense statute differs significantly from Colorado’s: Texas

  treats self-defense as a justification, not an affirmative defense.

  Tex. Penal Code Ann. § 9.31 (West 2007).

¶ 25   Texas law requires a defendant to prove an affirmative defense

  by a preponderance of the evidence, and the state “has a burden

  requiring it to prove its case beyond a reasonable doubt.” Harrod,

  203 S.W.3d at 627. “A jury verdict of guilty is an implicit finding

  rejecting the defendant’s self-defense theory.” Id. Thus, a



                                     13
  defendant’s assertion of self-defense in Texas legally operates more

  like a traverse operates in Colorado.

¶ 26   Under Colorado law, a traverse “effectively refutes the

  possibility that the defendant committed the charged offense by

  negating one or more elements of that offense.” Roberts, ¶ 21, 399

  P.3d at 705. When evidence presented raises the issue of a

  traverse, “‘the jury may consider the evidence in determining

  whether the prosecution has proven the element implicated by the

  traverse beyond a reasonable doubt’ . . . [and] proof beyond a

  reasonable doubt of the element implicated by the traverse, by

  definition, disproves the traverse.” Id. at ¶ 22, 399 P.3d at 705

  (citation omitted).

¶ 27   Conversely, when self-defense is used as an affirmative

  defense in Colorado, “[d]isproving the existence of self-defense

  becomes an additional element of the offense that the prosecution

  has to disprove beyond a reasonable doubt.” Castillo v. People,

  2018 CO 62, ¶ 39, 421 P.3d 1141, 1148. Thus, unanimity on each

  element of a traverse is unnecessary, as the Texas court




                                    14
  determined, because a guilty verdict implicitly rejects self-defense

  under Texas law.

¶ 28   Accordingly, we conclude that the trial court abused its

  discretion in permitting the prosecution to prove felony menacing

  without instructing the jury that it must unanimously agree on

  which exception to self-defense it relied.

¶ 29   However, our analysis does not end here. Since the error is of

  constitutional magnitude, the constitutional harmless error

  standard of reversal applies. We reverse the trial court’s judgment

  unless we are confident beyond a reasonable doubt that the error

  did not contribute to the conviction. Bernal v. People, 44 P.3d 184,

  200 (Colo. 2002). Although the People argue that the instructional

  error was harmless beyond a reasonable doubt, we disagree.

¶ 30   As the juror’s question suggests, some jurors may have

  believed Mosely was the initial aggressor, while others may have

  believed that he goaded members of the bachelor party into fighting

  with him. Accordingly, we conclude that the trial court’s answer to

  the juror’s instruction was not harmless beyond a reasonable doubt

  and the jury’s menacing conviction cannot stand.



                                    15
                       E. Instructions on Remand

¶ 31   On retrial, provided that the same or similar evidence is

  presented, the trial court may instruct the jurors on self-defense

  and must give the standard unanimity instruction. The jurors may

  also be instructed regarding the self-defense exceptions of

  provocation and initial aggressor. However, if the prosecution

  argues the applicability of both exceptions, the trial court in its

  discretion may also provide the jurors with special verdict forms

  indicating whether they unanimously agree that the prosecution

  disproved one exception or the other or neither. The trial court may

  also give special verdict forms on the first two elements of self-

  defense, whether Mosely reasonably believed physical force was

  necessary and whether he used a degree of force which he

  reasonably believed was necessary under the circumstances.

                         III. Res Gestae Evidence

¶ 32   Mosely contends that the trial court erred in admitting as res

  gestae evidence an incident that took place inside the strip club

  before the altercation at issue. Because this issue applies to




                                     16
  Mosely’s second degree assault conviction and may arise on retrial

  of the felony menacing charge, we address it now. We disagree.

                           A. Relevant Facts

¶ 33   Over Mosely’s objection, the trial court admitted evidence of

  his conduct inside the strip club as res gestae evidence of the

  charged offenses. The prosecutor’s offer of proof explained that an

  initial altercation inside the strip club caused by Mosely “being rude

  or hitting on a female patron who happened to be the wife of

  another patron” provided context for the charged crimes. The

  prosecutor supported this explanation by asserting that, after the

  altercation, security personnel asked Mosely to leave the club, and

  he became confrontational and aggressive. Moreover, Mosely told

  detectives that he believed the bachelor party was the same group

  he confronted inside the strip club. The prosecutor argued that,

  because Mosely believed the incidents were related and his

  aggression — though not physical — was similar to the aggression

  exhibited toward the bachelor party, the evidence was res gestae.




                                   17
¶ 34   The trial court agreed with the prosecutor’s arguments,

  concluding that Mosely’s conduct in the strip club contextualized

  the altercation in the parking lot.

                          B. Standard of Review

¶ 35   We affirm a trial court’s evidentiary rulings absent an abuse of

  discretion. People v. Zapata, 2016 COA 75M, ¶ 37, 443 P.3d 78, 84,

  aff’d, 2018 CO 82, 428 P.3d 517. We only discern an abuse of

  discretion where the trial court rendered a manifestly arbitrary,

  unreasonable, or unfair decision, or it misapplied the law. People v.

  Jefferson, 2017 CO 35, ¶ 25, 393 P.3d 493, 498-99.

                            C. Applicable Law

¶ 36   We review the admissibility of relevant res gestae evidence

  assuming the maximum probative value of the evidence and the

  minimum unfair prejudice reasonably expected by its introduction.

  People v. Gladney, 250 P.3d 762, 768 (Colo. App. 2010). When, as

  here, a defendant has preserved an objection to the admission of

  evidence, we review for harmless error. See Yusem v. People, 210

  P.3d 458, 469 (Colo. 2009); People v. Reed, 2013 COA 113, ¶ 32,

  338 P.3d 364, 370. Under this standard, the prosecution must



                                    18
  prove that any error did not affect the defendant’s substantial

  rights. James v. People, 2018 CO 72, ¶¶ 18-19, 426 P.3d 336,

  340-41.

¶ 37   Res gestae evidence is

            matter incidental to the main fact and
            explanatory of it, including acts and words
            which are so closely connected therewith as to
            constitute a part of the transaction, and
            without a knowledge of which the main fact
            might not be properly understood. They
            are . . . the circumstances, facts and
            declarations which grow out of the main fact,
            are contemporaneous with it and serve to
            illustrate its character.

  Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991) (quoting

  Martinez v. People, 55 Colo. 51, 53-54, 132 P. 64, 65 (1913)). Trial

  courts may admit res gestae evidence to provide context and a fuller

  understanding of the conditions attendant to the charged crime.

  People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). It is

  generally so intertwined with the time and circumstances of the

  offense that its exclusion would leave a void in the account. Id.

  However, res gestae evidence may be excluded if its probative value

  is substantially outweighed by the danger of unfair prejudice,




                                   19
  confusion of the issues, or misleading the jury. See CRE 403;

  Gladney, 250 P.3d at 768.

                            D. Prior Incident

¶ 38   Mosely’s belief that the bachelor party members who entered

  the parking lot after leaving the strip club were related to the group

  he encountered inside the strip club supports the trial court’s

  ruling. Importantly, the two incidents were estimated to have taken

  place between ten and twenty minutes apart, and the evidence was

  relevant to establish the character of Mosely’s actions. See

  Quintana, 882 P.2d at 1374. Thus, evidence of his aggression,

  though not physical, toward the group inside the strip club could

  reasonably be expected to aid the jury’s understanding of the

  circumstances surrounding the charged offenses. For instance, it

  explained why Mosely left the strip club and gave the jury some idea

  of why he verbally confronted the bachelor party members in the

  parking lot.

                            E. Racial Animus

¶ 39   Mosely contends that the court erred in allowing testimony

  describing the altercation in the club as occurring between two



                                    20
  black men and a group of “Latin gentlemen and females.” He

  argues that such evidence was not res gestae and, instead, injected

  racial bias in order to gain traction with the jury. We disagree.

¶ 40   On appeal, Mosely contends that the “focus on [Mosely], who

  is African American, ‘coming on’ to a group of married women not of

  his race harkened back to the historically-rooted animus toward

  black men relating to nonblack women.” However, the People point

  out that the prosecutor did not highlight racial differences between

  the groups in opening or closing arguments and, instead, relied on

  the description only to identify the parties involved in the incident. 4

¶ 41   We note that Mosely rests his argument on a mistaken

  premise, asserting that the above testimony was an appeal to racial

  prejudice. However, the present case does not parallel the

  circumstances presented in People v. Robinson, 2017 COA 128M,

  ¶ 17, __ P.3d___, ___ (cert. granted, June 11, 2018), in which a

  division of our court concluded that “the prosecutor’s words




  4 We recognize that while these terms were used to identify the two
  groups, they are not necessarily accurate. Some Hispanic
  individuals are also black, and other Hispanics may appear to be
  white.

                                     21
  invoked some of the most damaging historical racial stereotypes”

  when the prosecutor said,

             You’re going to hear that [one of the victims,
             A.M.,] is white. And she’s actually pretty
             pasty. She’s pasty white. And you obviously
             have seen Mr. Robinson is dark. He is an
             African American of dark complexion. [The
             other victim, E.G.,] looks over and she can see
             a dark penis going into a white body. That’s
             how graphic she could see [sic].

  Id. at ¶ 1, ___ P.3d at ___.

¶ 42   In any event, the brief testimony concerning race only

  identified the parties involved in the incident inside the strip club.

  Importantly, the prosecutor did not embellish the eyewitnesses’

  racial identification during opening or closing statements. Nor did

  the prosecutor suggest any racial bias in two black males “hitting

  on” females of another race. Therefore, we cannot conclude that the

  jury could have perceived the witnesses’ testimony as provoking

  racial animus.

¶ 43   We conclude that any probative value in admitting testimony

  identifying the races of the parties involved in the initial incident

  was not substantially outweighed by any prejudicial effect.




                                     22
                            IV. Conclusion

¶ 44   Accordingly, the judgment for felony menacing is reversed, the

  second degree assault conviction is affirmed, and the case is

  remanded for a new trial on the conviction for felony menacing.

       JUDGE HAWTHORNE and JUDGE GROVE concur.




                                   23
