Denied February 20, 2020.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
County District Court No. 17CR565 Honorable William B. Bain,
J. Weiser, Attorney General, Brittany L. Limes, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
A. Ring, Colorado State Public Defender, Jacob B. McMahon,
Deputy State Public Defender, Denver, Colorado, for
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.
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.
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
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.
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 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.
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.
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
Deficient Jury Instruction
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. We discern no
Standard of Review
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 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).
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
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
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. ...