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 ...