v. Mosely

Citations

• 2019 COA 143

Syllabus

Officers removed defendant from a strip club after he exhibited confrontational and aggressive behavior toward other patrons. A short while later, in the club's parking lot, an argument and physical altercation erupted between defendant and a group of men attending a bachelor party. During the fight, defendant stabbed T.K. in the abdomen with a small folding knife. A jury found him guilty of second degree assault and felony menacing. On appeal, defendant asserted that the trial 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 defendant's affirmative defense of self-defense. 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. In this case, the jury had to agree unanimously as to the applicability of either the provocation or initial aggressor exception to self-defense. Accordingly, 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. Further, the juror's question suggested that some jurors may have believed defendant was the initial aggressor, while others may have believed that he goaded members of the bachelor party into fighting with him. Accordingly, the error was not harmless beyond a reasonable doubt and the menacing conviction cannot stand. Defendant also contended 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. The evidence explained why defendant left the strip club and gave the jury some idea of why he verbally confronted the bachelor party members in the parking lot, and thus helped the jury understand