dissenting.
Unlike the majority, I believe the unob-jected-to, one-word error in the assault instruction given below was neither obvious nor substantial, and I would therefore find *563that it could not amount to plain error. In addition, I disagree with much of the majority's evidentiary analysis and consider it misguided. The reversal of this murder convietion appears to me to result less from errors of law and more from this court's interference in matters properly reserved to the trial court and the jury. I therefore respectfully dissent.
With regard to trial error that is not brought to the court's attention by contemporaneous objection, reversal of a subsequent conviction is justified only if the error was both obvious, such that the court should have noticed it anyway, and serious enough to undermine the fundamental fairness of the trial and cast doubt on the reliability of the conviction. See People v. Miller, 113 P.3d 748, 750 (Colo.2005). In this case, the offending instruction enumerated the elements of the crime of second degree assault and was given, not because the defendant was charged with second degree assault, but because one of the statutory justifications for using deadly force in self-defense is acting upon a reasonable belief that another appears about to commit second degree assault and that using a lesser degree of force in self-defense will be inadequate. § 18-1-704(2)(a) and (c), C.R.S. (2008).
The trial court instructed the jury about the crime of second degree assault in order to give them a basis for assessing whether the defendant believed the vietim was about to commit that crime and whether such a belief, if he really entertained it, would have been reasonable. The court correctly notified them that second degree assault required the commission of serious bodily injury to another, but it erroneously informed them that the offense also required an intent to cause serious bodily injury, rather than merely bodily injury, which the statute actually requires. See § 18-3-208(1)(b), C.R.S. (2008). As applicable to the cireumstances of this case, this error therefore erroneously required the jury to reject the defendant's theory of self-defense if it found that he did not believe the victim intended to act in a manner involving at least a substantial risk of breaks or fractures.
The majority's explanation how there could be a reasonable likelihood that the jury's rejection of the defense might have been impacted by this slip seems to me so contrived as to be unworthy of serious credit. I do not consider it a reasonable possibility that a jury, which could not find a reasonable belief that the victim intended to cause serious bodily injury, would find it, nevertheless, reasonably necessary to stab the victim to prevent him from uninientionally causing serious bodily injury. The scenario offered by the majority presumes of the jury the kind of mind-numbing distinctions and parsing of legal definitions that would be difficult for most trained lawyers.
Moreover, I do not consider the failure of either counsel to catch the inclusion of this single word, which had earlier been excised from the definition of second degree assault, see ch. 287, see. 8, § 18-8-208(1)(a), 1994 Colo. Sess. Laws 1717, to be an obvious mistake, which effectively required no objection. If, as the majority postulates, the entire defense theory hinged on the defendant's belief that the victim was likely to cause far greater injury than even he intended, it would not be unreasonable to assume defense counsel had the self-defense instructions foremost in his mind. The error was, of course, not sufficiently obvious to be caught by defense counsel, even with this motivation.
Finally, I disagree with the majority's criticism of the trial court's decision to admit evidence of the defendant's near-obsession with self-defense and several of his later markings. With regard to the former, I think the majority's analysis under CRE 404(b) misses the mark. The vast majority of the evidence complained of suggested nothing about other crimes or wrongful acts, which might be indicative of a bad or criminal character. The possession of knives and the study of self-defense did not reveal a criminal character or any revolting prior conduct that might cause a jury to punish the defendant for a murder they did not believe he committed. Quite the contrary, to the extent this evidence was likely to influence the jury at all, it could do so only by demonstrating the defendant's abnormal concern *564for protecting himself from attack, a predisposition extremely probative of the unreasonableness of his subjective perceptions. Evidence is considered probative, not unfairly prejudicial, if it harms the defendant only by disproving a required condition of an affirmative defense.
With regard to the defendant's later doodling, I consider that to be a matter properly left for the jury. To the extent that these scrawlings could be understood by reasonable jurors as references to the charged offenses, as the prosecution has always maintained, they were relevant, subject to the jury's resolution of that fact. Our rules of evidence require the admission, rather than exclusion, of evidence when its relevance is contingent upon the fulfillment of a condition of fact, as long as there is sufficient evidence from which reasonable jurors could find that condition. See CRE 104(b) (Preliminary Questions: Relevancy conditioned on fact). While not conclusive one way or the other, there was unquestionably sufficient evidence in this case to convince the jury that the defendant's doodlings were references to the victim and witness in this case, rather than something else that might be unfairly prejudicial.
As we have made clear on numerous occasions, questions of relevance are peculiarly within the discretion of the trial court and are subject to review only by assuming the maximum probative value and the minimum prejudicial effect possible. See, eg., People v. Rath, 44 P.3d 1033, 1043-44 (Colo.2002). Similarly, we have often made clear that a criminal conviction will not be reversed for error alone, but only if the error casts serious doubt on the fairness of the trial and the reliability of the conviction. See Miller, 113 P.3d at 750. I believe the majority's decision to reverse the defendant's convictions and its orders for retrial unjustifiably infringe on the prerogatives of the trial court and the jury.
I therefore respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.