COLORADO COURT OF APPEALS                                          2017COA27


Court of Appeals No. 15CA1306
Arapahoe County District Court No. 14CR2503
Honorable John R. Lowenbach, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Robert Newell,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VII
                         Opinion by JUDGE RICHMAN
                         Harris and Plank*, JJ., concur

                          Announced March 9, 2017


Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    Defendant, John Robert Newell, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of second

 degree assault with a deadly weapon. The district court denied

 defendant’s request for a self-defense instruction because the court

 found that he had not provided evidence that he was not the initial

 aggressor. We conclude that the district court erred by placing a

 burden on defendant to offer direct evidence that he was not the

 initial aggressor before allowing the jury to be instructed on self-

 defense, and we therefore reverse his conviction and remand for a

 new trial.

                             I. Background

¶2    Defendant shared an apartment with his girlfriend, Chantel

 McDowell, and his cousin, Eric Albert, who had been staying at the

 apartment for a couple of weeks. Defendant and Albert had an

 altercation, during which defendant cut Albert’s back with a

 straight-edge barber razor, causing a wound near his shoulder

 blade which required twelve stitches.1 Defendant was charged with



 1McDowell referred to the weapon as a “switchblade,” and a
 detective referred to the weapon as a “cut-throat razor,” but it was
 undisputed that the weapon came from defendant’s barber school

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 second degree assault, a class 4 felony, and a violent crime

 sentence enhancer.

¶3     There were three eyewitnesses to the altercation: defendant,

 McDowell, and Albert. Of these, only McDowell and Albert testified

 at trial.

¶4     As relevant here, McDowell, who said that her relationship

 with defendant was strained at the time of the incident, testified

 that after having taken muscle relaxers and gone to bed early, she

 awoke when she heard defendant screaming, “get the fuck out of

 my house.” She said that she entered the living room, where the

 two men were yelling at each other. On direct examination, she

 said that “at some point” she saw scissors in Albert’s hand, but

 could not recall exactly when in the sequence of events she saw the

 scissors.

¶5     On cross-examination, she acknowledged that shortly after the

 incident, she told investigating Officer Anthony Green that as she

 came out of the bedroom, she saw defendant holding the razor and




 kit, and an exhibit admitted at trial confirmed that the weapon was
 a straight-edge razor.

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 Albert holding a pair of orange-handled scissors.2 She testified that

 when she made that statement to Officer Green, the events were

 “fresh in [her] mind,” and because she had just seen what had

 happened, it was “more likely to be what [she] actually saw.”

 Officer Green confirmed that she reported seeing Albert with

 scissors when she entered the living room.

¶6    McDowell reported that defendant and Albert were standing

 near the front door when she exited the bedroom, and that Albert’s

 back was toward the door, with nothing preventing his exit. She

 also testified that she later saw Albert cross the room, pick up a

 suede-backed dining room chair, and throw it toward defendant,

 who remained near the front door. Albert also testified that he

 threw a chair at defendant.

¶7    McDowell stated that the men began scuffling, and she went to

 the bedroom to call 911. During the 911 call, she reported that

 there were no injuries, yet minutes later realized that Albert had

 been cut. At trial, she testified that she had not seen when Albert




 2Officer Green testified that he measured the scissors and that the
 scissors had four-inch blades.

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  was cut, and also confirmed that she had told Officer Green that

  defendant had slashed at Albert when Albert picked up the chair.

¶8        Albert offered inconsistent testimony about when he was cut.

  He testified that he was cut while on his hands and knees by the

  front door, before he threw the chair, but he also testified that he

  did not feel anything and that he did not know he was cut at the

  time.

¶9        McDowell admitted that she did not see the beginning of the

  argument and testified that she did not see Albert do anything that

  might have injured defendant’s face.

¶ 10      Albert testified that the fight began when he asked defendant

  to turn off the light. After that, defendant “was up in [Albert’s] face

  and then [they] got to scuffling,” and then defendant hit him in the

  forehead. Albert testified that he never touched defendant, and that

  he had not been holding scissors.

¶ 11      Officer Cody Jones testified that when defendant was arrested,

  he had a cut near his right eye. Officer Jones took photos of

  defendant’s face shortly after the altercation because defendant

  “said that his face started to hurt.” One photo was admitted at




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  trial. Two additional photos of defendant’s cut, taken two days after

  the altercation, were also admitted.

                       II. Procedural Background

¶ 12   Defendant’s theory of the case was that he had inflicted the

  injury to Albert in self-defense — that Albert had cut his face with

  the scissors before McDowell entered the room and that he then

  slashed at Albert because Albert had picked up a chair.

¶ 13   During voir dire, prospective jurors were questioned at length

  about their ability to apply the law with respect to a claim of

  self-defense. Both the prosecution and defendant referenced

  self-defense arguments at the opening of trial. And based on the

  evidence adduced at trial, summarized above, and the inference

  that Albert cut defendant’s face with his scissors, defendant

  requested a jury instruction on self-defense. Defendant reiterated

  this request multiple times.

¶ 14   The prosecution argued that defendant had not produced a

  “scintilla of evidence” that he was not the initial aggressor because

  the only direct evidence of initial aggression was Albert’s testimony,

  which pointed to defendant. And because defendant had produced

  no direct evidence that Albert had touched him, he was not entitled


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  to a self-defense instruction. The prosecutor further argued that

  not being an initial aggressor is an element of self-defense and that

  defendant must show that he was not the initial aggressor.

¶ 15   Referring to the model jury instructions for self-defense, the

  district court found some evidence for elements (1) and (2) — that

  defendant used physical force in order to defend himself from what

  he reasonably believed to be the use or imminent use of unlawful

  physical force, and that he used a degree of force which he

  reasonably believed to be necessary. See COLJI-Crim. H:11 (2016).

  But because the court found not “even a scintilla of evidence” that

  defendant did not provoke an unlawful use of force by Albert or that

  defendant was not the initial aggressor — which it considered to be

  elements (3) and (4) — it refused to give the self-defense instruction.

  See id.

¶ 16   The jury found defendant guilty of second degree assault,

  acting upon a provoked and sudden heat of passion, which reduced

  the offense to a class 6 felony. The district court sentenced

  defendant to the custody of the Department of Corrections for a

  term of three years.




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                              III. Discussion

¶ 17   On appeal, defendant contends that the district court (1) erred

  when it failed to give the jury a self-defense instruction and

  (2) abused its discretion by prohibiting elicitation of evidence that

  defendant knew about Albert’s prior violent act. We agree with

  defendant’s first contention, and we address the second only to the

  extent that it might arise on remand.

                        A. Self-Defense Instruction

¶ 18   Defendant argues that (1) the record contained, and the

  district court recognized, sufficient evidence to warrant a self-

  defense instruction; (2) he was not required to present evidence

  refuting the initial aggressor exception; and (3) the district court’s

  failure to give the instruction violated his constitutional right to due

  process. The People argue that no credible evidence supported

  giving the instruction. We conclude that on appeal, as at trial, the

  People assert a higher standard than the law prescribes for the jury

  to be instructed on self-defense.

                1. Standard of Review and Applicable Law

¶ 19   We review de novo whether sufficient evidence supports a

  self-defense jury instruction. People v. Garcia, 113 P.3d 775, 784


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  (Colo. 2005). When considering an affirmative defense instruction,

  we consider the evidence in the light most favorable to the

  defendant. Cassels v. People, 92 P.3d 951, 955 (Colo. 2004).

  Because defendant requested the instruction, any error in failing to

  give the instruction requires reversal unless the error did not affect

  defendant’s substantial rights. People v. Garcia, 28 P.3d 340, 344

  (Colo. 2001).

¶ 20   If there is any evidence in the record to support the theory that

  a defendant acted in self-defense, the defendant is entitled to an

  instruction, and a court’s refusal to give one deprives the accused of

  his or her constitutional right to a trial by a jury. Idrogo v. People,

  818 P.2d 752, 754 (Colo. 1991); People v. Janes, 962 P.2d 315, 319

  (Colo. App. 1998), aff’d, 982 P.2d 300 (Colo. 1999).

¶ 21   While an affirmative defense requires a defendant to “present

  some credible evidence on that issue,” § 18-1-407(1), C.R.S. 2016,

  this means just a “scintilla of evidence,” that is, some evidence

  when viewed most favorably to the defendant that could support a

  jury finding in his favor, People v. Saavedra-Rodriguez, 971 P.2d

  223, 228 (Colo. 1998). The small quantum of evidence that must

  appear in the record in order to warrant an instruction on an


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  affirmative defense may come from any source, even from the

  prosecution. People v. Whatley, 10 P.3d 668, 670 (Colo. App. 2000).

¶ 22   A defendant is entitled to an affirmative defense instruction

  embodying his theory of the case “if the record contains any

  evidence to support the theory, even if the supporting evidence

  consists only of highly improbable testimony by the defendant.”

  Garcia, 28 P.3d at 347.

¶ 23   The affirmative defense of self-defense is codified in the first

  subsection of section 18-1-704, C.R.S. 2016. Idrogo, 818 P.2d at

  754. That statute provides, in relevant part, that

             (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.

  § 18-1-704(1).

¶ 24   Section 18-1-704 also provides exceptions. Using physical

  force in self-defense is not justified when the defendant is the initial

  aggressor and did not effectively withdraw from the encounter

  before applying the force used in self-defense. § 18-1-704(3)(b).



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¶ 25   When a trial court is presented with some evidence that a

  defendant used force in self-defense, and some evidence that the

  defendant is the initial aggressor, the court should instruct the jury

  on both self-defense and the initial aggressor exception. See People

  v. Roadcap, 78 P.3d 1108, 1113 (Colo. App. 2003); see also People

  v. Griffin, 224 P.3d 292, 300 (Colo. App. 2009) (where there was

  evidence that the victim threatened the defendant before reaching

  into his truck and evidence that the defendant shot him in the

  back, the trial court did not err in giving both instructions); People

  v. Montoya, 928 P.2d 781, 784 (Colo. App. 1996) (where there was

  evidence that the defendant shot at a car and evidence that the

  victim was acting in concert with the driver when later following

  defendant into an alley, the trial court did not err in giving both

  instructions). It is then the prosecution’s burden to prove beyond a

  reasonable doubt that defendant’s conduct was not authorized as

  self-defense; the prosecution may meet that burden by proving that

  the defendant was the initial aggressor. See COLJI-Crim. H:11

  (2016).




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                                2. Analysis

¶ 26   We conclude that the evidence received at trial, summarized in

  Part I, although conflicting, was sufficient to entitle defendant to a

  self-defense jury instruction. The evidence that (1) McDowell saw

  Albert holding a pair of scissors; (2) defendant had a cut on his face

  which could be consistent with a cut from a pair of scissors; (3) no

  witness could explain how defendant was injured; (4) Albert

  “scuffled” with defendant; and (5) Albert threw a chair at defendant

  could permit a trier of fact to conclude that defendant acted in

  self-defense.

¶ 27   Though Albert testified that defendant was the initial

  aggressor, and no witness testified to the contrary, defendant need

  not disprove that he was the initial aggressor in order to benefit

  from a self-defense instruction when any evidence — even slight,

  unreasonable, or improbable evidence — supports his theory of

  self-defense. People v. Dillon, 655 P.2d 841, 845 (Colo. 1982) (“The

  general rule in Colorado is that an instruction embodying the

  defendant’s theory of the case must be given if there is any evidence

  in the record to support it . . . no matter how improbable or

  unreasonable defendant’s theory is.”). Instead, it is the


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  prosecution’s burden to prove an exception to self-defense. See

  People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (If the evidence

  at trial raises the issue of an affirmative defense, “the affirmative

  defense effectively becomes an additional element, and the [district]

  court must instruct the jury that the prosecution bears the burden

  of proving beyond a reasonable doubt that the affirmative defense is

  inapplicable.”).

¶ 28   It is for the jury, not the judge, to decide which witnesses and

  even which version of the witnesses’ testimony is to be believed.

  See People v. Barker, 189 Colo. 148, 149, 538 P.2d 109, 110 (1975)

  (“It is axiomatic that the jury is the sole judge of the credibility of

  the witnesses.”); see also People v. Ramirez, 30 P.3d 807, 808-09

  (Colo. App. 2001) (a limitation on a judge’s power “is premised on

  the basic principle that the jury should decide the difficult

  questions of witness credibility and the weight to be given to

  conflicting evidence”). Once the defendant offers a scintilla of

  evidence of self-defense, and the prosecution has offered evidence

  that the defendant was the initial aggressor, the jury should be

  provided with the self-defense instruction, including the initial




                                      12
  aggressor exception, and be permitted to weigh the evidence to

  decide whether self-defense has been disproved.

¶ 29   We are not persuaded by the People’s argument that the

  evidence here supporting a self-defense instruction is “mere

  speculation” equivalent to “no evidence.” Circumstantial evidence,

  such as the evidence here, is “some evidence” from which a jury

  could infer that Albert was the initial aggressor. Moreover, this case

  is unlike People v. Schliesser, where the defendant admitted to

  striking the first blow and provided no justification. 671 P.2d 993,

  994-95 (Colo. App. 1983). Here, the district court itself found some

  evidence for the affirmative defense of self-defense as codified in

  section 18-1-704 and mirrored in the model jury instructions. See

  Idrogo, 818 P.2d at 754; COLJI-Crim. H:11 (2016). And because

  the court found some evidence, it should have given the jury an

  instruction on self-defense.

¶ 30   Because the district court failed to properly instruct the jury

  on the applicable law of self-defense, the prosecution did not bear

  the burden of disproving self-defense, and defendant was deprived

  of his right to acquittal on that ground. See Idrogo, 818 P.2d at

  756. Accordingly, the error was not harmless and we must reverse.


                                    13
  See People v. DeGreat, 2015 COA 101, ¶ 18 (the trial court’s refusal

  to give a self-defense instruction lowered the prosecution’s burden

  of proof and was not harmless) (cert. granted Aug. 1, 2016).

¶ 31   We conclude that a self-defense instruction should be given

  when there is any evidence — including circumstantial evidence —

  that a defendant acted in self-defense. The defendant need not

  provide direct evidence that he was not the initial aggressor.

  Instead, the language of the initial aggressor exception should be

  given in the self-defense instruction when the prosecution points to

  some evidence that the defendant was the initial aggressor. The

  jury can then decide if the prosecution met its burden of proof.

         B. Evidence That Defendant Knew of Prior Violent Act

¶ 32   Albert had been convicted of a violent crime — armed robbery

  — approximately thirty-seven years before the altercation, and the

  district court allowed defendant to admit that evidence for

  impeachment purposes. Defendant then attempted to elicit

  evidence from Albert that defendant knew about Albert’s conviction,

  in order to bolster his self-defense argument by showing that

  defendant had a reasonable belief that Albert would imminently use

  unlawful force against him, but the court would not allow it.


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¶ 33   Defendant argues on appeal that this ruling violated his right

  to confront and cross-examine a witness and to present a

  meaningful defense. Because this issue is only relevant in the

  context of an affirmative defense of self-defense, which was not

  permitted in this case, we need not resolve the issue.

¶ 34   Insofar as the issue may arise on remand, we offer the

  following guidance: whether an act of violence or defendant’s

  discovery of such act is “too remote to create . . . an apprehension

  or fear sufficient to justify the force used by defendant . . . is a

  matter committed to the sound discretion of the trial court.” People

  v. Vasquez, 148 P.3d 326, 331 (Colo. App. 2006).

                               IV. Conclusion

¶ 35   Because we conclude that defendant was entitled to a

  self-defense jury instruction, we reverse and remand for a new trial

  on second degree assault, acting upon a provoked and sudden heat

  of passion, a class 6 felony.

       JUDGE HARRIS and JUDGE PLANK concur.




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