People v. Payne, 2014 COA 81

V.V.'s home burglarized while family away; neighbor observed a car matching description and a nervous man loading items.
Police matched defendant's vehicle to the description and later showed the neighbor his photo lineup; she identified defendant as resembling the burglar.
Defendant was charged with second-degree burglary, theft, and five habitual-criminal counts; jury found burglary and theft, habitual adjudication entered.
Trial court sentenced defendant to 48 years; defendant appeals alleging denial of right to be present and other errors.
Court held: reversal of convictions, vacation of sentence, and remand for new trial; addressed presence during modified Allen instruction and sufficiency of the evidence.
The court remanded on burglary and the lesser theft charge; affirmed remand for retrial rather than entry of a new theft conviction; declined to address other evidentiary issues pending retrial.
Note: The decision discusses the modified Allen instruction and its impact on defendant's right to be present, as well as the sufficiency of evidence for the theft value.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was defendant's right to be present violated by reading the modified Allen instruction in his absence?	Payne; right to presence extended to in-court jury communications.	Payne's absence during open-court reading violated due process.	Yes; violation requires reversal and retrial.
Was the absence harmless or prejudicial under Chapman v. California standards?	State failed to show beyond a reasonable doubt no prejudice.	Absence could have influenced jury.	Prejudice not shown; error not harmless.
Was the evidence sufficient to sustain a theft conviction valued between $1,000 and $20,000?	Evidence of value supported $1,000–$20,000 range.	Some items lacked reliable value; not enough for felony theft.	No; insufficient for felony theft; remanded for retrial on burglary and lesser theft.
Should the case be remanded for retrial or for issuance of a new theft conviction?	Convictions may stand given some evidence of value.	Remand for retrial on burglary and lesser offense.	Remand for retrial on burglary and the lesser misdemeanor theft.
Were other challenges (rulings on value definition, other acts, suppression) preserved for retrial?	Arguments preserved but unresolved pending retrial.	Rights and evidentiary challenges require ruling.	Not addressed on remand; reserved for retrial.

Kentucky v. Stincer, 482 U.S. 730 (U.S. 1987) (presence required when pivotal to defense; substantial relation to fair trial)
People v. White, 870 P.2d 424 (Colo. 1994) (right to presence tied to due process in trial stages)
Fontanez, 878 F.2d 34 (2d Cir. 1989) (in-court jury instructions; reading modified Allen can be critical stage)
Gagnon v. Scarpelli, 470 U.S. 522 (U.S. 1985) (presence during court-jury communications; Confrontation Clause implications)
Isom, 140 P.3d 100 (Colo. App. 2005) (absence during court deliberation matters; due process)
Key v. People, 865 P.2d 822 (Colo. 1994) (counsel/deliberation-style concerns; right to presence related to counsel)
Ragusa, 220 P.3d 1002 (Colo. App. 2009) (in-camera court-attorney discussions analogue to right to counsel)
Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless-error standard; presumes prejudice absent beyond reasonable doubt)
Snyder v. Massachusetts, 291 U.S. 97 (U.S. 1934) (dissent discusses the depth of the right to be present)
Wade v. United States, 441 F.2d 1046 (D.C. Cir. 1971) (jury communications and defendant presence)