Thomas Pearson v. The People of the State of Colorado., 2022 CO 4

On June 1, 2017, Thomas Pearson (tow-truck driver) and Timothy O'Kelly had a highway confrontation; Pearson admitted punching O'Kelly but said he tempered his force and acted to prevent further attack.
Pearson was charged with third-degree assault, criminal mischief, and harassment under § 18-9-111(1)(a) (striking or otherwise touching another with intent to harass, annoy, or alarm).
The trial court allowed a self-defense instruction for assault but refused to treat self-defense as an affirmative defense to the harassment charge, instead treating self-defense only as an element-negating traverse.
The jury acquitted Pearson of assault and criminal mischief but convicted him of harassment. The district court affirmed the harassment conviction.
The Colorado Supreme Court granted certiorari and reversed, holding a defendant may assert self-defense as an affirmative defense to harassment if there is some credible evidence that the defendant acted with the intent to alarm as a means of self-defense; the case was remanded for further proceedings.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Pearson)	Held
Whether self-defense can be an affirmative defense to specific-intent harassment (§ 18-9-111(1)(a)).	Self-defense is inconsistent with the specific intent to "harass, annoy, or alarm," so it cannot be an affirmative defense; it is instead an element-negating traverse.	A defendant can intend to alarm an aggressor as a means of defending oneself (e.g., to distract or deter); thus self-defense can function as an affirmative defense to harassment if supported by some credible evidence.	Held: A defendant may assert self-defense as an affirmative defense to harassment if there is some credible evidence a reasonable jury could find the defendant intended to alarm as a means of self-defense.
Whether the trial court erred by refusing to give an affirmative-defense instruction and whether that error was harmless.	The trial court properly refused because the mental states are mutually exclusive; any self-defense evidence could be handled as a traverse instruction.	Refusal to give the affirmative-defense instruction improperly lowered the prosecution's burden; Pearson presented at least some credible evidence entitling him to the instruction.	Held: Trial court erred in refusing the affirmative-defense instruction; error was not harmless beyond a reasonable doubt and requires reversal and remand.

Roberts v. People, 399 P.3d 702 (Colo. 2017) (trial courts must instruct jury on applicable defenses; distinguisher between affirmative defenses and traverses)
People v. DeGreat, 428 P.3d 541 (Colo. 2018) ("some credible evidence" standard for affirmative-defense instructions; defendant testimony can suffice)
People v. Garcia, 113 P.3d 775 (Colo. 2005) (defendant must present some credible evidence to raise an affirmative defense)
People v. Pickering, 276 P.3d 553 (Colo. 2011) (distinguishing affirmative defenses from traverses and explaining burdens)
People v. Huckleberry, 768 P.2d 1235 (Colo. 1989) (affirmative defenses admit conduct but seek to justify, excuse, or mitigate)
People v. Coahran, 436 P.3d 617 (Colo. App. 2019) (example where alarming/distracting conduct was treated as self-defense)
Griego v. People, 19 P.3d 1 (Colo. 2001) (instructional errors on elements are subject to constitutional harmless-error review)
Hagos v. People, 288 P.3d 116 (Colo. 2012) (errors in jury instructions require reversal unless harmless beyond a reasonable doubt)