Colorado’s second-highest court agreed last month that a Jefferson County defendant’s assault convictions could not stand because his jury should have been allowed to consider whether he used force against a bar patron to defend his girlfriend from inappropriate touching.

While the testimony conflicted and the surveillance video was not conclusive, jurors heard that Scott Alan Gallegos and his then-girlfriend were at an Arvada bar when another patron came over to talk to the girlfriend. At one point, the girlfriend stood up and told Gallegos that the man had allegedly touched her. She later testified that he had poked her breast.

Gallegos pulled a wrench from his pocket, which he kept for motorcycle repairs, and hit the victim multiple times. After the victim’s friend jumped on Gallegos, Gallegos struck him with the wrench, too.

Jurors convicted Gallegos of two counts of assault and reckless endangerment, and he received an 18-year prison sentence.

Gallegos, who testified in his defense, did not dispute hitting the victims, but he maintained he was trying to protect his girlfriend from the man’s “groping.” He knew that she had been “inappropriately touched” as a child and was sensitive around strangers.

Gallegos asserted self-defense, but he also asked for the jury to consider whether he had acted in defense of a third person. Under Colorado law, a person is justified in using a reasonable degree of force to defend a third person if he reasonably believes an aggressor will imminently use unlawful force.

District Court Judge Tamara S. Russell declined to give the instruction, reasoning there was “no discussion of unlawful physical force” from the man who allegedly touched the girlfriend.

The girlfriend “had already gotten up and started to walk away before Mr. Gallegos picked up his wrench and struck (the victim),” she said. “He was, by Mr. Gallegos’ own admission, not keeping (the victim) from harming (the girlfriend). It was more of a response.”

On appeal, the defense argued that there was some evidence to suggest the victim had used unlawful force against the girlfriend, and Gallegos was justified in thinking he might do so again.

“The touchstone of defense of a third person is reasonable belief, not absolute certainty. Gallegos was entitled to act upon reasonable appearances under the totality of the circumstances,” wrote public defender Jeffrey A. Wermer.

“Assuming the ‘poking’ alleged by (the girlfriend) constituted unlawful physical force,” responded Senior Assistant Attorney General Frank R. Lawson, “all testimony and video evidence confirmed she had removed herself from any perceived threat before defendant withdrew a crescent wrench to attack (the victim). In other words, defendant’s actions were, at most, made in retaliation to the alleged contact rather than to protect (the girlfriend) from an ongoing or imminent threat.”

But a three-judge Court of Appeals panel believed the evidence did not conclusively show that the girlfriend was out of the perceived danger at the time Gallegos struck the victim.

The video “can also be reasonably interpreted to portray that (the girlfriend) didn’t start to walk away until the very moment when Gallegos attacked (the victim),” wrote Judge Craig R. Welling in the May 28 opinion. “In other words, the girlfriend was still in very close proximity to the victim when Gallegos struck him. From this, the jury could infer that Gallegos reasonably believed that (the girlfriend) remained at imminent risk of further unlawful touching by (the victim) at the time he acted.”

Turning to the criteria for the defense-of-a-third-person instruction, Welling acknowledged that the circumstances “may not have been the strongest defense of a third person case.” However, some evidence suggested Gallegos acted in defense of his girlfriend, had a reasonable belief the victim would use further force, and used a reasonable degree of force in defending his girlfriend.

“To be sure, there is a strong case to be made that the use of the wrench wasn’t reasonable,” added Welling. “Weighing this evidence against Gallegos’ testimony, however, is the jury’s role. Here, we are only evaluating if there was some evidence to support giving the defense of a third person jury instruction.”

Because the withheld instruction could have caused the jury to believe that Gallegos was the aggressor and was not justified in attacking the second victim, the panel ordered a new trial for both of Gallegos’ assault charges.

The case is People v. Gallegos.