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People v. Procasky

Court of Appeals of Colorado, First Division

December 12, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Cody Lee Procasky, Defendant-Appellant.

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

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

          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

          OPINION

          TAUBMAN, JUDGE

         ¶ 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.

         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 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.

         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 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 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 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 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 ...


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