2019 COA 181
Colo. Ct. App.2019Background
- On Jan. 27, 2017, Raymond Butler reported that a black sedan (driven by Procasky) had fired at his vehicle; Butler followed the sedan and called 911.
- Officers activated lights and sirens; the sedan continued about two blocks on a residential road, turned into a school parking lot, drove over a six-inch curb to a lower lot without braking, then stopped at officers' direction.
- Officers ordered Procasky out at gunpoint; a 9mm pistol (with a round chambered), a loaded magazine, loose 9mm rounds, two rifles, and ammunition were recovered from the car; no spent casings were found inside the vehicle.
- Procasky denied shooting, claiming guns were from prior target shooting; a jury convicted him of attempted first-degree assault, felony menacing, possession of a weapon on school grounds, prohibited use of a weapon, reckless endangerment, eluding, and a crime-of-violence enhancer.
- The trial court sentenced him to five years for attempted first-degree assault; lesser sentences ran concurrently. Procasky appealed raising multiple challenges to instructions, sufficiency of evidence, merger, and his absence from a bench conference during deliberations.
- The Court of Appeals affirmed in part, vacated convictions for eluding and possession of a deadly weapon on school grounds, and remanded to correct the mittimus.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Procasky) | Held |
|---|---|---|---|
| Whether omission of specific-intent language in attempted first-degree assault attempt instruction was plain error | Instruction omission was harmless because other instructions sufficiently informed the jury | Omission deprived jury of required mens rea and constituted plain error | No plain error: instructions read together adequately conveyed mens rea |
| Whether evidence supported eluding conviction for driving two blocks before stopping in school lot | Driving two blocks after signals can be an attempt to elude (citing Espinoza) | Driving slowly two blocks without accelerating or extinguishing lights was not an attempt to elude | Insufficient evidence; eluding conviction vacated |
| Whether possession of a deadly weapon on school grounds was proven when defendant pulled into school lot in response to police | Presence of weapon on school property satisfies statute | Pulling into the lot at officers' direction was not "unlawful" entry onto school property | Insufficient evidence: conduct was not unlawful; conviction vacated |
| Whether felony menacing merges into attempted first-degree assault | Menacing is necessarily established by attempted assault | Attempted assault does not necessarily show knowledge of victim's fear required for menacing | No merger: offenses distinct; convictions may stand concurrently |
| Whether defendant's absence during bench conference about juror access to exhibits violated right to be present | Absent presence deprived defendant of being present at a critical stage | Conference was minor; defense counsel stipulated and absence was harmless | No reversible error: any error was harmless beyond a reasonable doubt |
Key Cases Cited
- Gann v. People, 736 P.2d 37 (Colo. 1987) (mens rea omission in one instruction can be cured by other instructions read together)
- People v. Petschow, 119 P.3d 495 (Colo. App. 2005) (attempt instruction lacking explicit specific intent upheld where assault instruction supplied mens rea)
- People v. Espinoza, 195 P.3d 1122 (Colo. App. 2008) ("in any other manner" language can encompass flight on foot after a stop signal)
- People v. Dutton, 356 P.3d 871 (Colo. App. 2014) (eluding established by high-speed, reckless driving and evasive maneuvers)
- People v. Pena, 962 P.2d 285 (Colo. App. 1997) (acceleration after officer activation supports eluding)
- People v. Truesdale, 804 P.2d 287 (Colo. App. 1990) (menacing is not necessarily a lesser included offense of assault)