v. Procasky

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 12, 2019
2019COA181

No. 17CA2054, People v. Procasky — Crimes — Eluding or
Attempting to Elude a Police Officer — Possession of a Deadly
Weapon on School Grounds

In an issue of first impression, a division of the court of

appeals holds that driving for two blocks, without accelerating,

before turning into a parking lot in response to a police officer’s

signal to pull over does not constitute sufficient evidence to convict

for vehicular eluding. In a second issue of first impression, the

court determines that pulling into a school parking lot with a gun

present in the vehicle in response to a police officer’s directive is not

sufficient evidence to prove “unlawful” conduct for purposes of

section 18-12-105.5, C.R.S. 2019.

The court also considers whether a trial court plainly errs

when it omits a specific intent element from a jury instruction for

attempted first degree assault. It concludes that, though omission
of the element was erroneous, the jury instructions — read together

— adequately informed the jury regarding the required mens rea.

Additionally, rejecting the notion that proof of attempted first

degree assault necessarily establishes felony menacing, the court

concludes that a defendant can stand convicted of both offenses;

thus, those convictions do not merge.

Finally, the court determines that a defendant is not

prejudiced when — in his or her absence — defense counsel and

the prosecution stipulate that a jury may have access during

deliberations to physical evidence introduced at trial.

Accordingly, the division affirms the judgement in part, vacates

in part, and remands to the trial court to correct the mittimus.
COLORADO COURT OF APPEALS 2019COA181

Court of Appeals No. 17CA2054
El Paso County District Court No. 17CR565
Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cody Lee Procasky,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Freyre and Pawar, JJ., concur

Announced December 12, 2019

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Cody Lee Procasky, appeals the judgment of

conviction entered on a jury verdict finding him guilty of attempted

first degree assault, felony menacing, possession of a weapon on

school grounds, prohibited use of a weapon, reckless

endangerment, eluding a police officer, and a crime of violence

sentence enhancer. He contends that (1) the trial court plainly

erred when it failed to properly instruct the jury on the mens rea for

attempted first degree assault; (2) insufficient evidence supported

his conviction for eluding police; (3) insufficient evidence supported

his conviction for possession of a deadly weapon on school grounds;

(4) his conviction for felony menacing should merge with his

conviction for attempted first degree assault; and (5) the trial court

violated his constitutional right to be present during all critical

stages of his trial. We affirm in part and vacate in part.

¶2 We address two issues of first impression: (1) whether

Procasky could be convicted of vehicular eluding after driving two

blocks to a school parking lot and stopping there at police officers’

direction, and (2) whether Procasky could be convicted of

possession of a deadly weapon on school grounds when he stopped

at the school parking lot.

1
 I. Background

¶3 On January 27, 2017, Raymond Butler contacted 911 to

report the driver of a black sedan who he believed had fired between

three and five shots at his vehicle while driving on the interstate.

¶4 Butler testified that he was driving in the left lane when he

observed the black sedan rapidly approaching. To allow the sedan

to pass, Butler merged into the right lane behind another vehicle.

He claimed that at the moment he applied his brakes, he noticed a

hand emerge from the sedan and saw “a muzzle flash.” He reported

that he heard a series of “thuds” that he was able to identify as

gunshots because he owns two guns.

¶5 Butler followed the sedan until two police officers arrived and

engaged their lights and sirens. The sedan continued for two blocks

on a two-lane residential road until it turned into a school parking

lot. One of the officers testified that she believed the vehicle could

have safely stopped on the side of the road at any point. The school

parking lot had an upper and lower level, separated by a curb. The

sedan originally proceeded toward the upper level but then drove

over the curb, that dropped off approximately six-inches, to the

lower level without braking. Once the car reached the lower level of

2
 the parking lot, it stopped. Law enforcement officers ordered the

driver — Procasky — out of the car at gunpoint. Procasky complied

and walked toward the officers as ordered, at which point he was

arrested, and his car was searched. The officers uncovered a 9mm

Smith & Wesson pistol with a live round in the chamber under the

front passenger seat. They also found the pistol’s loaded magazine

in the center console and several 9mm bullets on the ground near

the driver’s side door. In the trunk, the officers found two rifles and

four boxes of ammunition. However, they did not find spent shell

casings in the car.

¶6 Procasky claimed that Butler’s car cut him off, and he heard

another car backfire right afterward. He denied pointing or firing

his pistol at Butler’s vehicle. He said the guns and ammunition

were in his vehicle because he had been target shooting the day

before.

¶7 The jury found him guilty of all charges, and the court

sentenced him to five years in the custody of the Department of

Corrections for his attempted first degree assault conviction. The

sentences for the lesser charges were to run concurrently.

3
 II. Deficient Jury Instruction

¶8 Procasky contends that the trial court plainly erred by failing

to provide a specific intent element for the jury instruction on

attempted first degree assault.1 We discern no plain error.

A. Standard of Review

¶9 When a party has failed to properly preserve for appeal the

issue of whether jury instructions accurately informed the jury of

the governing law, we will reverse only if any error found rises to the

level of plain error. People v. Miller, 113 P.3d 743, 749 (Colo. 2005).

Plain error is error that is substantial, obvious, and “occurs when,

after reviewing the entire record, the reviewing court can say with

1 We reject the People’s contention that Procasky waived his
challenge to the jury instructions on appeal simply because he did
not object to them. See People v. Rediger, 2018 CO 32, ¶ 3, 416
P.3d 893, 897 (concluding the defendant’s mere acquiescence to a
jury instruction does not constitute a waiver without evidence
demonstrating that the defendant intentionally relinquished a
known right). In the absence of evidence that the defendant
intended to relinquish a known right, we indulge every reasonable
presumption against waiver. Id. at ¶ 48, 416 P.3d at 903. Here,
when the court asked if the challenged instruction looked
satisfactory, defense counsel stated, “it does.” The People articulate
no tactical or strategic reason supporting their argument that
defense counsel intended to approve erroneous instructions. Id. at
¶ 44, 416 P.3d at 903.

4
 fair assurance that the error so undermined the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction.” People v. Rector, 248 P.3d 1196,

1203 (Colo. 2011).

B. Applicable Law

¶ 10 We read jury instructions as a whole to determine whether,

when read together, they adequately informed the jury of the

governing law. Gann v. People, 736 P.2d 37, 39 (Colo. 1987). Thus,

a court’s failure to properly instruct the jury “does not constitute

plain error if the relevant instruction, read in conjunction with

other instructions, adequately informs the jury of the law.” Miller,

113 P.3d at 750; Gann, 736 P.2d at 39; see also People v. Petschow,

119 P.3d 495, 499 (Colo. App. 2004) (“[O]mission or erroneous

description of the required mens rea does not render an instruction

constitutionally deficient when the instructions taken as a whole

clearly instruct the jury regarding the omitted or erroneous

element.”).

¶ 11 Over three decades ago, the supreme court considered

whether the trial court plainly erred by omitting the culpable

mental state, an essential element of the offense, from a jury

5
 instruction. Gann, 736 P.2d at 38. It held that the instruction was

erroneous, but because the omitted element was prominently

included in another instruction, the instructions as a whole

adequately informed the jury of the mens rea. Id. at 39. Since that

decision, multiple divisions of our court have also concluded that

omission of an essential element in an elemental instruction is not

fatal, so long as other jury instructions adequately inform the jury.

Petschow, 119 P.3d at 500-02; People v. Beatty, 80 P.3d 847, 851

(Colo. App. 2003); People v. Johnson, 74 P.3d 349, 353-54 (Colo.

App. 2002); People v. Caldwell, 43 P.3d 663, 671-72 (Colo. App.

2001); People v. Mendez, 897 P.2d 868, 870 (Colo. App. 1995);

People v. Key, 851 P.2d 228, 232 (Colo. App. 1992), rev’d on other

grounds, 865 P.2d 822 (Colo. 1994).

¶ 12 In Petschow, a division of our court considered whether the

court erred by failing to instruct the jury that attempted first degree

assault required that the defendant had the specific intent to

commit assault. The court described the relevant jury instructions

as follows:

The attempt instruction required the jury to
find that defendant “intentionally, engaged in
conduct constituting a substantial step toward

6
 the commission of assault in the first degree.”
The instruction on first degree assault properly
required the jury to find that defendant acted
with intent to cause serious bodily injury to
another person. In addition, the jury was
again instructed that a substantial step is
conduct that is strongly corroborative of the
firmness of the actor’s purpose to commit the
crime.

Petschow, 119 P.3d at 502.

¶ 13 The division concluded that the trial court obviously erred by

failing to specify that the defendant must act with the intent to

cause serious bodily injury. Id. However, it held that “the

instructions, when read and considered together with the

instruction on the elements of first degree assault and the definition

of a substantial step, clearly instructed the jury regarding the

required mens rea.” Id. Thus, the court concluded that the error

did not affect the defendant’s substantial rights and did not require

reversal. Id.

C. Analysis

¶ 14 Here, the relevant jury instructions mirror those reviewed in

Petschow. The jury instruction for attempted first degree assault

required the jury to find that the defendant “with intent, engaged in

conduct constituting a substantial step toward the commission of

7
 assault in the first degree.” Like in Petschow, the instruction did

not state that the defendant must have acted with the specific

intent to cause serious bodily injury. However, the attempt

instruction referenced the jury instruction for first degree assault,

which correctly described the mens rea required as “with intent to

cause serious bodily injury to another . . . .” Additionally, the jury

was instructed that “[a] substantial step is any conduct . . . which

is strongly corroborative of the firmness of the actor’s purpose to

complete the commission of the offense.”

¶ 15 We agree with the Petschow division. Here, the trial court’s

failure to provide the specific intent element in the instruction for

attempted first degree assault constituted error. However, we

conclude that the jury instructions in this case, when read and

considered together, clearly instructed the jury regarding the

required mens rea for attempted first degree assault. Accordingly,

we discern no plain error.

III. Eluding a Police Officer

¶ 16 Procasky argues that the prosecution produced insufficient

evidence to sustain a conviction for eluding a police officer. We

agree.

8
 A. Standard of Review

¶ 17 We review sufficiency of the evidence claims de novo, even if

raised for the first time on appeal. McCoy v. People, 2019 CO 44,

¶ 34, 442 P.3d 379, 388.

B. Applicable Law and Analysis

¶ 18 In evaluating the sufficiency of the evidence, we must

determine whether any rational trier of fact might accept the

evidence, taken as a whole and in the light most favorable to the

prosecution, as sufficient to support a finding of the defendant’s

guilt beyond a reasonable doubt. Clark v. People, 232 P.3d 1287,

1291 (Colo. 2010); People v. Randell, 2012 COA 108, ¶ 31, 297 P.3d

989, 998. Our inquiry is guided by five well-established principles:

(1) we give the prosecution the benefit of every reasonable inference

that might fairly be drawn from the evidence; (2) the credibility of

witnesses is solely within the jury’s province; (3) we may not serve

as a thirteenth juror to determine the weight of the evidence; (4) a

modicum of relevant evidence will not rationally support a

conviction beyond a reasonable doubt; and (5) verdicts in criminal

cases may not be based on guessing, speculation, or conjecture.

9
 People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999); Randell, ¶ 31,

297 P.3d at 998.

¶ 19 We conduct our inquiry through the language of the statute

defining the offense of eluding a police officer. That statute

provides:

Any operator of a motor vehicle who the officer
has reasonable grounds to believe has violated
a state law or municipal ordinance, who has
received a visual or audible signal such as a
red light or a siren from a police officer driving
a marked vehicle showing the same to be an
official police, sheriff, or Colorado state patrol
car directing the operator to bring the
operator’s vehicle to a stop, and who willfully
increases his or her speed or extinguishes his
or her lights in an attempt to elude such police
officer, or willfully attempts in any other
manner to elude the police officer, or does
elude such police officer commits a class 2
misdemeanor traffic offense.

§ 42-4-1413, C.R.S. 2019.

¶ 20 The People urge us to apply the holding in People v. Espinoza,

195 P.3d 1122, 1129 (Colo. App. 2008), to conclude that Procasky

attempted to elude police officers by driving two blocks before

pulling over in a school parking lot. In Espinoza, a division of our

court concluded that the defendant attempted to elude police

officers when, after a police officer signaled him to stop, he drove

10
 slowly for four blocks before stopping and fleeing on foot. Id. at

1129. The division focused its inquiry on whether fleeing on foot

can constitute eluding under the statute. Id. In so doing, it

concluded that the statutory language “in any other manner” is

broad and includes attempts to elude on foot. Id.

¶ 21 However, the facts here are distinguishable. Espinoza did not

address whether the defendant’s driving four blocks before pulling

over constituted eluding; it addressed his pedestrian flight. Indeed,

no testimony indicated that Procasky attempted to flee on foot.

More importantly, none of the testimony indicated that he increased

his speed, extinguished his lights, or otherwise made an effort to

escape from the officers.

¶ 22 Moreover, the pursuit occurred in a residential neighborhood,

and law enforcement officers did not testify that Procasky exceeded

the speed limit; thus, we can infer that Procasky maintained a

lawful speed for two blocks before pulling over.

¶ 23 Nothing in the eluding statute requires immediate compliance.

§ 42-4-1413; see § 42-4-107, C.R.S. 2019 (requiring compliance

with lawful orders or directions of police officers). Our court has

found that evidence was sufficient to sustain an eluding conviction

11
 when the defendant “drove ‘in such a manner as to indicate either a

wanton or a willful disregard for the safety of persons or property.’”

People v. Dutton, 2014 COA 51, ¶ 25, 356 P.3d 871, 875 (quoting

§ 42-4-1401(1), C.R.S. 2019). In Dutton, the division found that the

defendant attempted to elude officers, and an officer testified that

he saw the defendant

• spin his wheels so that they threw up sand
and gravel;
• accelerate rapidly;
• travel at high rates of speed that were not safe
for the area;
• fail to stop at a stop sign;
• fail to slow for turns;
• slide sideways through turns;
• continue to accelerate while being pursued by
a police officer with activated overhead lights;
and
• swerve to avoid a pedestrian crossing the
street.

Id. at ¶¶ 24-25, 356 P.3d at 875.

¶ 24 In People v. Pena, 962 P.2d 285, 288 (Colo. App. 1997),

another division of our court concluded that the evidence was

sufficient to establish eluding where “the police officer testified that

defendant’s car accelerated after the officer activated his lights and

siren and that the chase then continued for another quarter of a

mile.”

12
¶ 25 Here, Procasky did not accelerate, and he drove only two

blocks before turning into a school parking lot, driving over a six-

inch curb, stopping, and then following the officer’s directions to get

out of his vehicle. These actions do not, in our view, establish to a

rational trier of fact that he attempted to elude the police officers.

Thus, we conclude that the evidence was insufficient to sustain the

conviction, and it must be vacated. See People v. Ramirez, 2018

COA 129, ¶ 41, ___P.3d___, ___.

IV. Possession of a Deadly Weapon on School Grounds

¶ 26 Procasky argues that he did not commit the felony of

possessing a deadly weapon on school grounds when he drove into

the school parking lot with his handgun in the car because he

pulled over in response to police officers’ sirens and flashing lights.

We agree.

A. Standard of Review

¶ 27 We “review sufficiency claims de novo, even when the

defendant raises such issues for the first time on appeal and even if

consideration of the issue involves a preliminary question of

statutory construction.” McCoy, ¶ 34, 442 P.3d at 388.

13
 B. Applicable Law and Analysis

¶ 28 When interpreting a statute, we strive to “ascertain and

effectuate the intent of the General Assembly.” People v. Diaz, 2015

CO 28, ¶ 12, 347 P.3d 621, 624. We look first to the plain language

of the statute to determine whether the language is clear and

unambiguous — such that it does not require additional analysis —

or susceptible of more than one reasonable interpretation, requiring

us to apply other rules of statutory interpretation. Id. at ¶¶ 12-13,

347 P.3d at 624-25.

¶ 29 Bearing in mind these principles, we look to the relevant

statute. It states, with certain exceptions inapplicable here, that

“[a] person commits a class 6 felony if such person knowingly and

unlawfully and without legal authority carries, brings, or has in

such person’s possession a deadly weapon . . . in or on the real

estate and all improvements erected thereon of any . . . school . . . .”

§ 18-12-105.5(1), C.R.S. 2019.

¶ 30 Turning first to the plain language of the statute, we discern

no ambiguity. We give each term its ordinary meaning. Doubleday

v. People, 2016 CO 3, ¶ 19, 364 P.3d 193, 196. Accordingly, the

defendant must have “unlawfully” entered school property with a

14
 deadly weapon. The term “unlawfully” means that the defendant’s

action was in violation of the criminal code. See People v. McNeese,

892 P.2d 304, 312 (Colo. 1995) (stating that a statutory

requirement that a defendant “knowingly” and “unlawfully” entered

a dwelling requires that the defendant knew he was acting in

violation of the criminal code).

¶ 31 Thus, we must determine whether the evidence at trial was

sufficient to convict Procasky of knowingly and unlawfully

possessing a deadly weapon on school grounds.2 Employing the

sufficiency of the evidence analysis discussed above, we conclude

that Procasky pulled into the school parking lot in response to the

police officers’ sirens and flashing lights. Thus, by pulling over in

response to the police officers’ directive, Procasky was not acting

2 We need not address whether Procasky possessed a deadly
weapon on school grounds “without legal authority,” because the
People do not argue a distinction between “unlawfully” and “without
legal authority,” and the statute was written in the conjunctive. See
Waneka v. Clyncke, 134 P.3d 492, 499 (Colo. App. 2005) (“The
General Assembly’s use of the word ‘and,’ instead of ‘or,’ is
presumed to be in the conjunctive sense unless the legislative
intent is clearly to the contrary.”), aff’d, 157 P.3d 1072 (Colo. 2007).
Thus, because we conclude that he did not act unlawfully, it is of
no consequence whether he acted “without legal authority.”

15
 unlawfully. This is especially so given that Procasky was not

eluding officers when he pulled into the school parking lot rather

than stopping sooner on the shoulder of the road. Accordingly, the

evidence does not satisfy the elements required by the statute and

his conviction must be set aside. Ramirez, ¶ 41, ___ P.3d at ___.

V. Merger

¶ 32 Procasky urges us to merge his convictions for felony

menacing and attempted first degree assault because proof of

attempted first degree assault necessarily establishes felony

menacing. We decline to do so.

A. Standard of Review

¶ 33 Whether merger applies is subject to de novo review. People v.

Esparza-Treto, 282 P.3d 471, 478 (Colo. App. 2011). Procasky did

not preserve this issue for appeal because he did not object when

the court entered separate convictions for felony menacing and

attempted first degree assault; thus, plain error review applies.

People v. Davis, 2015 CO 36M, ¶ 32, 352 P.3d 950, 957. Plain error

is “‘obvious and substantial,’ and must have ‘so undermined the

fundamental fairness of the [proceeding] so as to cast serious doubt

on the reliability of the judgment.’” Id. (citations omitted).

16
 B. Applicable Law

¶ 34 The merger doctrine precludes conviction of both a greater and

lesser included offense. § 18-1-408(1)(a), C.R.S. 2019; People v.

Delci, 109 P.3d 1035, 1037 (Colo. App. 2004). In so doing, the

doctrine protects the accused from double jeopardy, which is

prohibited by the United States and Colorado Constitutions. U.S.

Const. amend. V; Colo. Const. art. II, § 18.

¶ 35 A lesser included offense is established by proof of the same or

less than all of the facts required to establish the commission of the

offense charged. § 18-1-408(5)(a); Delci, 109 P.3d at 1038. “Where

the [G]eneral [A]ssembly proscribes conduct in different provisions

of the penal code and identifies each provision with a different title,

its intent to establish more than one offense is generally clear.”

People v. Abiodun, 111 P.3d 462, 465 (Colo. 2005).

¶ 36 However, we apply a “strict elements test” to determine if proof

of the facts establishing the statutory elements of the greater

offense necessarily establishes all the elements of the lesser offense;

if so, the lesser offense merges into the greater. See People v.

Zweygardt, 2012 COA 119, ¶ 13, 298 P.3d 1018, 1021. “[A]n

offense is a lesser included offense of another offense if the

17
 elements of the lesser offense are a subset of the elements of the

greater offense, such that the lesser offense contains only elements

that are also included in the elements of the greater offense.”

Reyna-Abarca v. People, 2017 CO 15, ¶ 64, 390 P.3d 816, 826.

C. Analysis

¶ 37 Our analysis requires us to compare the elements of the

operative offenses — attempted first degree assault and felony

menacing.

¶ 38 Attempted first degree assault requires that a defendant, with

intent to cause serious bodily injury, takes a substantial step

toward causing another person serious bodily injury. § 18-2-

101(1), C.R.S. 2019; § 18-3-202(1)(a), C.R.S. 2019.

¶ 39 Felony menacing, however, requires the jury to find that a

defendant knowingly, by any threat or physical action, places or

attempts to place another person in fear of serious bodily injury or

death. § 18-3-206(1)(a), C.R.S. 2019. Thus, felony menacing

directs the fact finder’s attention toward the defendant’s knowledge

of the victim’s state of mind.

¶ 40 “[T]he fact that a defendant intentionally caused or attempted

to cause bodily injury to an intended victim does not necessarily

18
compel the conclusion that the defendant also knowingly placed the

victim in fear of serious bodily injury.” People v. Truesdale, 804

P.2d 287, 288-89 (Colo. App. 1990). Divisions of our court in

People v. Torres, 224 P.3d 268, 276 (Colo. App. 2009), and

Truesdale, 804 P.2d at 288-89, have concluded that felony

menacing is not a lesser included offense of second degree murder

or second degree assault. Those divisions reasoned that a

defendant’s intent to harm or kill the victim does not automatically

imply that the defendant also intended to instill fear in the victim.

See Torres, 224 P.3d at 276; Truesdale, 804 P.2d at 288-89.

Recently, the supreme court in Margerum v. People, 2019 CO 100, ¶

27, ___ P.3d ___, ___, recognized that menacing is not a lesser

included offense of assault. Importantly, the supreme court

affirmed a division of this court’s observation that “all defendants in

assault cases will not necessarily face criminal liability for

menacing simply because the victim is afraid during an assault,

because the proper focus is on the defendant’s intent, not the

victim’s perception or reaction.” People v. Margerum, 2018 COA 52,

¶ 68, ___ P.3d ___, ___, aff’d, 2019 CO 100, ___P.3d___, ___.

19
¶ 41 In addition, we agree with the People that if a defendant

attempted to assault the victim while the victim’s back was turned

or while he or she was asleep, the defendant could not have placed

or attempted to place the victim in fear of bodily injury or death.

¶ 42 In light of our case law and the evidence presented at trial, we

conclude that felony menacing and attempted first degree assault

do not merge.

VI. Right to be Present

¶ 43 Last, Procasky contends that the trial court violated his

constitutional right to be present at his trial when it communicated

with the deliberating jury while he was outside the courtroom. We

disagree.

A. Standard of Review

¶ 44 We review de novo the question of whether a trial court denied

a defendant’s constitutional right to be present. Zoll v. People, 2018

CO 70, ¶ 15, 425 P.3d 1120, 1125.3 When, as here, the defendant

3 We decline to conclude that a violation of a defendant’s right to be
present constitutes structural error, as Procasky argues. See Zoll v.
People, 2018 CO 70, ¶ 15, 425 P.3d 1120, 1125; see also Weaver v.
Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1912-13 (2017)
(finding that prejudice is not presumed when the trial court violated

20
 was not present and had no opportunity to object to his absence,

we review allegations of denial of the right to be present at trial for

constitutional harmless error. Id. at ¶ 17, 425 P.3d at 1125-26;

Luu v. People, 841 P.2d 271, 274 (Colo. 1992). We affirm if any

alleged error was harmless beyond a reasonable doubt. Luu, 841

P.2d at 275.

B. Applicable Law

¶ 45 A criminal defendant has the right to be present at all critical

stages of his or her prosecution. People v. White, 870 P.2d 424, 458

(Colo. 1994). Due process demands a defendant’s presence to the

extent that a fair and just hearing would be thwarted by his or her

absence. Luu, 841 P.2d at 275. “However, due process does not

require the defendant’s presence when it would be useless or only

slightly beneficial.” People v. Isom, 140 P.3d 100, 104 (Colo. App.

2005).

the defendant’s right to a public trial on claim of ineffective
assistance of counsel); Luu v. People, 841 P.2d 271, 274 (Colo.
1992).

21
 C. Analysis

¶ 46 Here, while the jury deliberated, the trial court returned to the

bench in response to an issue about the jury’s access to the

magazine, pistol, and live rounds recovered during the search.

Though Procasky was not present, his defense attorney was and

explained that Procasky was downstairs with his grandfather. The

prosecutor and defense counsel stipulated that, if the jury wanted

access to the physical evidence, it could view the magazine, pistol,

and live rounds individually, but not all together. Both attorneys

agreed that the clerk could communicate to the jury that all

exhibits would remain in the courtroom but that each could be sent

back for viewing. The record does not show whether the jurors ever

requested to view the exhibits.

¶ 47 Assuming, without deciding, that Procasky had a

constitutional right to be present, we conclude that the People have

shown beyond a reasonable doubt that any error did not contribute

to the verdict.

¶ 48 Further, it is unlikely that Procasky’s presence would have

resulted in a different ruling. The jury had already viewed the

requested evidence during trial and heard testimony about the

22
 evidence. Moreover, there was no question that Procasky possessed

the gun, magazine, and ammunition on the day in question; the

primary issue was whether he aimed it and shot at Butler. Without

the corroborating testimony provided by Butler and law

enforcement officers, none of the evidence requested for viewing by

the jury — standing alone — proved any of the crimes for which

Procasky was convicted. Therefore, we discern no prejudice caused

by Procasky’s absence during this stage of the trial. Thus, any

error stemming from Procasky’s absence was harmless beyond a

reasonable doubt.

VII. Conclusion

¶ 49 Accordingly, the judgment is affirmed in part and vacated in

part. We vacate Procasky’s convictions for eluding a police officer

and possession of a deadly weapon on school grounds and affirm

his remaining convictions. We remand to the trial court to amend

the mittimus.

JUDGE FREYRE and JUDGE PAWAR concur.

23