     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 12, 2019
                               2019COA181

No. 17CA2054, People v. Procasky — Crimes — Eluding or
Attempting to Elude a Police Officer — Possession of a Deadly
Weapon on School Grounds

     In an issue of first impression, a division of the court of

appeals holds that driving for two blocks, without accelerating,

before turning into a parking lot in response to a police officer’s

signal to pull over does not constitute sufficient evidence to convict

for vehicular eluding. In a second issue of first impression, the

court determines that pulling into a school parking lot with a gun

present in the vehicle in response to a police officer’s directive is not

sufficient evidence to prove “unlawful” conduct for purposes of

section 18-12-105.5, C.R.S. 2019.

     The court also considers whether a trial court plainly errs

when it omits a specific intent element from a jury instruction for

attempted first degree assault. It concludes that, though omission
of the element was erroneous, the jury instructions — read together

— adequately informed the jury regarding the required mens rea.

     Additionally, rejecting the notion that proof of attempted first

degree assault necessarily establishes felony menacing, the court

concludes that a defendant can stand convicted of both offenses;

thus, those convictions do not merge.

     Finally, the court determines that a defendant is not

prejudiced when — in his or her absence — defense counsel and

the prosecution stipulate that a jury may have access during

deliberations to physical evidence introduced at trial.

    Accordingly, the division affirms the judgement in part, vacates

in part, and remands to the trial court to correct the mittimus.
COLORADO COURT OF APPEALS                                        2019COA181


Court of Appeals No. 17CA2054
El Paso County District Court No. 17CR565
Honorable William B. Bain, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cody Lee Procasky,

Defendant-Appellant.


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

                                  Division I
                        Opinion by JUDGE TAUBMAN
                        Freyre and Pawar, JJ., concur

                        Announced December 12, 2019


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
¶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.


                                    1
                          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


                                    2
 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.




                                    3
                   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




 1 We reject the People’s contention that Procasky waived his
 challenge to the jury instructions on appeal simply because he did
 not object to them. See People v. Rediger, 2018 CO 32, ¶ 3, 416
 P.3d 893, 897 (concluding the defendant’s mere acquiescence to a
 jury instruction does not constitute a waiver without evidence
 demonstrating that the defendant intentionally relinquished a
 known right). In the absence of evidence that the defendant
 intended to relinquish a known right, we indulge every reasonable
 presumption against waiver. Id. at ¶ 48, 416 P.3d at 903. Here,
 when the court asked if the challenged instruction looked
 satisfactory, defense counsel stated, “it does.” The People articulate
 no tactical or strategic reason supporting their argument that
 defense counsel intended to approve erroneous instructions. Id. at
 ¶ 44, 416 P.3d at 903.

                                    4
  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


                                      5
  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


                                      6
             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


                                    7
  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

  required mens rea for attempted first degree assault. Accordingly,

  we discern no plain error.

                     III.   Eluding a Police Officer

¶ 16   Procasky argues that the prosecution produced insufficient

  evidence to sustain a conviction for eluding a police officer. We

  agree.


                                      8
                         A.   Standard of Review

¶ 17   We review sufficiency of the evidence claims de novo, even if

  raised for the first time on appeal. McCoy v. People, 2019 CO 44,

  ¶ 34, 442 P.3d 379, 388.

                    B.   Applicable Law and Analysis

¶ 18   In evaluating the sufficiency of the evidence, we must

  determine whether any rational trier of fact might accept the

  evidence, taken as a whole and in the light most favorable to the

  prosecution, as sufficient to support a finding of the defendant’s

  guilt beyond a reasonable doubt. Clark v. People, 232 P.3d 1287,

  1291 (Colo. 2010); People v. Randell, 2012 COA 108, ¶ 31, 297 P.3d

  989, 998. Our inquiry is guided by five well-established principles:

  (1) we give the prosecution the benefit of every reasonable inference

  that might fairly be drawn from the evidence; (2) the credibility of

  witnesses is solely within the jury’s province; (3) we may not serve

  as a thirteenth juror to determine the weight of the evidence; (4) a

  modicum of relevant evidence will not rationally support a

  conviction beyond a reasonable doubt; and (5) verdicts in criminal

  cases may not be based on guessing, speculation, or conjecture.




                                     9
  People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999); Randell, ¶ 31,

  297 P.3d at 998.

¶ 19   We conduct our inquiry through the language of the statute

  defining the offense of eluding a police officer. That statute

  provides:

              Any operator of a motor vehicle who the officer
              has reasonable grounds to believe has violated
              a state law or municipal ordinance, who has
              received a visual or audible signal such as a
              red light or a siren from a police officer driving
              a marked vehicle showing the same to be an
              official police, sheriff, or Colorado state patrol
              car directing the operator to bring the
              operator’s vehicle to a stop, and who willfully
              increases his or her speed or extinguishes his
              or her lights in an attempt to elude such police
              officer, or willfully attempts in any other
              manner to elude the police officer, or does
              elude such police officer commits a class 2
              misdemeanor traffic offense.

  § 42-4-1413, C.R.S. 2019.

¶ 20   The People urge us to apply the holding in People v. Espinoza,

  195 P.3d 1122, 1129 (Colo. App. 2008), to conclude that Procasky

  attempted to elude police officers by driving two blocks before

  pulling over in a school parking lot. In Espinoza, a division of our

  court concluded that the defendant attempted to elude police

  officers when, after a police officer signaled him to stop, he drove


                                      10
  slowly for four blocks before stopping and fleeing on foot. Id. at

  1129. The division focused its inquiry on whether fleeing on foot

  can constitute eluding under the statute. Id. In so doing, it

  concluded that the statutory language “in any other manner” is

  broad and includes attempts to elude on foot. Id.

¶ 21   However, the facts here are distinguishable. Espinoza did not

  address whether the defendant’s driving four blocks before pulling

  over constituted eluding; it addressed his pedestrian flight. Indeed,

  no testimony indicated that Procasky attempted to flee on foot.

  More importantly, none of the testimony indicated that he increased

  his speed, extinguished his lights, or otherwise made an effort to

  escape from the officers.

¶ 22   Moreover, the pursuit occurred in a residential neighborhood,

  and law enforcement officers did not testify that Procasky exceeded

  the speed limit; thus, we can infer that Procasky maintained a

  lawful speed for two blocks before pulling over.

¶ 23   Nothing in the eluding statute requires immediate compliance.

  § 42-4-1413; see § 42-4-107, C.R.S. 2019 (requiring compliance

  with lawful orders or directions of police officers). Our court has

  found that evidence was sufficient to sustain an eluding conviction


                                    11
  when the defendant “drove ‘in such a manner as to indicate either a

  wanton or a willful disregard for the safety of persons or property.’”

  People v. Dutton, 2014 COA 51, ¶ 25, 356 P.3d 871, 875 (quoting

  § 42-4-1401(1), C.R.S. 2019). In Dutton, the division found that the

  defendant attempted to elude officers, and an officer testified that

  he saw the defendant

           • spin his wheels so that they threw up sand
             and gravel;
           • accelerate rapidly;
           • travel at high rates of speed that were not safe
             for the area;
           • fail to stop at a stop sign;
           • fail to slow for turns;
           • slide sideways through turns;
           • continue to accelerate while being pursued by
             a police officer with activated overhead lights;
             and
           • swerve to avoid a pedestrian crossing the
             street.

  Id. at ¶¶ 24-25, 356 P.3d at 875.

¶ 24   In People v. Pena, 962 P.2d 285, 288 (Colo. App. 1997),

  another division of our court concluded that the evidence was

  sufficient to establish eluding where “the police officer testified that

  defendant’s car accelerated after the officer activated his lights and

  siren and that the chase then continued for another quarter of a

  mile.”


                                      12
¶ 25   Here, Procasky did not accelerate, and he drove only two

  blocks before turning into a school parking lot, driving over a six-

  inch curb, stopping, and then following the officer’s directions to get

  out of his vehicle. These actions do not, in our view, establish to a

  rational trier of fact that he attempted to elude the police officers.

  Thus, we conclude that the evidence was insufficient to sustain the

  conviction, and it must be vacated. See People v. Ramirez, 2018

  COA 129, ¶ 41, ___P.3d___, ___.

       IV.    Possession of a Deadly Weapon on School Grounds

¶ 26   Procasky argues that he did not commit the felony of

  possessing a deadly weapon on school grounds when he drove into

  the school parking lot with his handgun in the car because he

  pulled over in response to police officers’ sirens and flashing lights.

  We agree.

                         A.    Standard of Review

¶ 27   We “review sufficiency claims de novo, even when the

  defendant raises such issues for the first time on appeal and even if

  consideration of the issue involves a preliminary question of

  statutory construction.” McCoy, ¶ 34, 442 P.3d at 388.




                                     13
                    B.   Applicable Law and Analysis

¶ 28   When interpreting a statute, we strive to “ascertain and

  effectuate the intent of the General Assembly.” People v. Diaz, 2015

  CO 28, ¶ 12, 347 P.3d 621, 624. We look first to the plain language

  of the statute to determine whether the language is clear and

  unambiguous — such that it does not require additional analysis —

  or susceptible of more than one reasonable interpretation, requiring

  us to apply other rules of statutory interpretation. Id. at ¶¶ 12-13,

  347 P.3d at 624-25.

¶ 29   Bearing in mind these principles, we look to the relevant

  statute. It states, with certain exceptions inapplicable here, that

  “[a] person commits a class 6 felony if such person knowingly and

  unlawfully and without legal authority carries, brings, or has in

  such person’s possession a deadly weapon . . . in or on the real

  estate and all improvements erected thereon of any . . . school . . . .”

  § 18-12-105.5(1), C.R.S. 2019.

¶ 30   Turning first to the plain language of the statute, we discern

  no ambiguity. We give each term its ordinary meaning. Doubleday

  v. People, 2016 CO 3, ¶ 19, 364 P.3d 193, 196. Accordingly, the

  defendant must have “unlawfully” entered school property with a


                                    14
  deadly weapon. The term “unlawfully” means that the defendant’s

  action was in violation of the criminal code. See People v. McNeese,

  892 P.2d 304, 312 (Colo. 1995) (stating that a statutory

  requirement that a defendant “knowingly” and “unlawfully” entered

  a dwelling requires that the defendant knew he was acting in

  violation of the criminal code).

¶ 31   Thus, we must determine whether the evidence at trial was

  sufficient to convict Procasky of knowingly and unlawfully

  possessing a deadly weapon on school grounds.2 Employing the

  sufficiency of the evidence analysis discussed above, we conclude

  that Procasky pulled into the school parking lot in response to the

  police officers’ sirens and flashing lights. Thus, by pulling over in

  response to the police officers’ directive, Procasky was not acting




  2 We need not address whether Procasky possessed a deadly
  weapon on school grounds “without legal authority,” because the
  People do not argue a distinction between “unlawfully” and “without
  legal authority,” and the statute was written in the conjunctive. See
  Waneka v. Clyncke, 134 P.3d 492, 499 (Colo. App. 2005) (“The
  General Assembly’s use of the word ‘and,’ instead of ‘or,’ is
  presumed to be in the conjunctive sense unless the legislative
  intent is clearly to the contrary.”), aff’d, 157 P.3d 1072 (Colo. 2007).
  Thus, because we conclude that he did not act unlawfully, it is of
  no consequence whether he acted “without legal authority.”

                                     15
  unlawfully. This is especially so given that Procasky was not

  eluding officers when he pulled into the school parking lot rather

  than stopping sooner on the shoulder of the road. Accordingly, the

  evidence does not satisfy the elements required by the statute and

  his conviction must be set aside. Ramirez, ¶ 41, ___ P.3d at ___.

                               V.   Merger

¶ 32   Procasky urges us to merge his convictions for felony

  menacing and attempted first degree assault because proof of

  attempted first degree assault necessarily establishes felony

  menacing. We decline to do so.

                         A.    Standard of Review

¶ 33   Whether merger applies is subject to de novo review. People v.

  Esparza-Treto, 282 P.3d 471, 478 (Colo. App. 2011). Procasky did

  not preserve this issue for appeal because he did not object when

  the court entered separate convictions for felony menacing and

  attempted first degree assault; thus, plain error review applies.

  People v. Davis, 2015 CO 36M, ¶ 32, 352 P.3d 950, 957. Plain error

  is “‘obvious and substantial,’ and must have ‘so undermined the

  fundamental fairness of the [proceeding] so as to cast serious doubt

  on the reliability of the judgment.’” Id. (citations omitted).


                                     16
                           B.   Applicable Law

¶ 34   The merger doctrine precludes conviction of both a greater and

  lesser included offense. § 18-1-408(1)(a), C.R.S. 2019; People v.

  Delci, 109 P.3d 1035, 1037 (Colo. App. 2004). In so doing, the

  doctrine protects the accused from double jeopardy, which is

  prohibited by the United States and Colorado Constitutions. U.S.

  Const. amend. V; Colo. Const. art. II, § 18.

¶ 35   A lesser included offense is established by proof of the same or

  less than all of the facts required to establish the commission of the

  offense charged. § 18-1-408(5)(a); Delci, 109 P.3d at 1038. “Where

  the [G]eneral [A]ssembly proscribes conduct in different provisions

  of the penal code and identifies each provision with a different title,

  its intent to establish more than one offense is generally clear.”

  People v. Abiodun, 111 P.3d 462, 465 (Colo. 2005).

¶ 36   However, we apply a “strict elements test” to determine if proof

  of the facts establishing the statutory elements of the greater

  offense necessarily establishes all the elements of the lesser offense;

  if so, the lesser offense merges into the greater. See People v.

  Zweygardt, 2012 COA 119, ¶ 13, 298 P.3d 1018, 1021. “[A]n

  offense is a lesser included offense of another offense if the


                                    17
  elements of the lesser offense are a subset of the elements of the

  greater offense, such that the lesser offense contains only elements

  that are also included in the elements of the greater offense.”

  Reyna-Abarca v. People, 2017 CO 15, ¶ 64, 390 P.3d 816, 826.

                               C.   Analysis

¶ 37   Our analysis requires us to compare the elements of the

  operative offenses — attempted first degree assault and felony

  menacing.

¶ 38   Attempted first degree assault requires that a defendant, with

  intent to cause serious bodily injury, takes a substantial step

  toward causing another person serious bodily injury. § 18-2-

  101(1), C.R.S. 2019; § 18-3-202(1)(a), C.R.S. 2019.

¶ 39   Felony menacing, however, requires the jury to find that a

  defendant knowingly, by any threat or physical action, places or

  attempts to place another person in fear of serious bodily injury or

  death. § 18-3-206(1)(a), C.R.S. 2019. Thus, felony menacing

  directs the fact finder’s attention toward the defendant’s knowledge

  of the victim’s state of mind.

¶ 40   “[T]he fact that a defendant intentionally caused or attempted

  to cause bodily injury to an intended victim does not necessarily


                                    18
compel the conclusion that the defendant also knowingly placed the

victim in fear of serious bodily injury.” People v. Truesdale, 804

P.2d 287, 288-89 (Colo. App. 1990). Divisions of our court in

People v. Torres, 224 P.3d 268, 276 (Colo. App. 2009), and

Truesdale, 804 P.2d at 288-89, have concluded that felony

menacing is not a lesser included offense of second degree murder

or second degree assault. Those divisions reasoned that a

defendant’s intent to harm or kill the victim does not automatically

imply that the defendant also intended to instill fear in the victim.

See Torres, 224 P.3d at 276; Truesdale, 804 P.2d at 288-89.

Recently, the supreme court in Margerum v. People, 2019 CO 100, ¶

27, ___ P.3d ___, ___, recognized that menacing is not a lesser

included offense of assault. Importantly, the supreme court

affirmed a division of this court’s observation that “all defendants in

assault cases will not necessarily face criminal liability for

menacing simply because the victim is afraid during an assault,

because the proper focus is on the defendant’s intent, not the

victim’s perception or reaction.” People v. Margerum, 2018 COA 52,

¶ 68, ___ P.3d ___, ___, aff’d, 2019 CO 100, ___P.3d___, ___.




                                   19
¶ 41   In addition, we agree with the People that if a defendant

  attempted to assault the victim while the victim’s back was turned

  or while he or she was asleep, the defendant could not have placed

  or attempted to place the victim in fear of bodily injury or death.

¶ 42   In light of our case law and the evidence presented at trial, we

  conclude that felony menacing and attempted first degree assault

  do not merge.

                       VI.   Right to be Present

¶ 43   Last, Procasky contends that the trial court violated his

  constitutional right to be present at his trial when it communicated

  with the deliberating jury while he was outside the courtroom. We

  disagree.

                        A.    Standard of Review

¶ 44   We review de novo the question of whether a trial court denied

  a defendant’s constitutional right to be present. Zoll v. People, 2018

  CO 70, ¶ 15, 425 P.3d 1120, 1125.3 When, as here, the defendant




  3 We decline to conclude that a violation of a defendant’s right to be
  present constitutes structural error, as Procasky argues. See Zoll v.
  People, 2018 CO 70, ¶ 15, 425 P.3d 1120, 1125; see also Weaver v.
  Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1912-13 (2017)
  (finding that prejudice is not presumed when the trial court violated

                                    20
  was not present and had no opportunity to object to his absence,

  we review allegations of denial of the right to be present at trial for

  constitutional harmless error. Id. at ¶ 17, 425 P.3d at 1125-26;

  Luu v. People, 841 P.2d 271, 274 (Colo. 1992). We affirm if any

  alleged error was harmless beyond a reasonable doubt. Luu, 841

  P.2d at 275.

                           B.    Applicable Law

¶ 45   A criminal defendant has the right to be present at all critical

  stages of his or her prosecution. People v. White, 870 P.2d 424, 458

  (Colo. 1994). Due process demands a defendant’s presence to the

  extent that a fair and just hearing would be thwarted by his or her

  absence. Luu, 841 P.2d at 275. “However, due process does not

  require the defendant’s presence when it would be useless or only

  slightly beneficial.” People v. Isom, 140 P.3d 100, 104 (Colo. App.

  2005).




  the defendant’s right to a public trial on claim of ineffective
  assistance of counsel); Luu v. People, 841 P.2d 271, 274 (Colo.
  1992).

                                     21
                              C.    Analysis

¶ 46   Here, while the jury deliberated, the trial court returned to the

  bench in response to an issue about the jury’s access to the

  magazine, pistol, and live rounds recovered during the search.

  Though Procasky was not present, his defense attorney was and

  explained that Procasky was downstairs with his grandfather. The

  prosecutor and defense counsel stipulated that, if the jury wanted

  access to the physical evidence, it could view the magazine, pistol,

  and live rounds individually, but not all together. Both attorneys

  agreed that the clerk could communicate to the jury that all

  exhibits would remain in the courtroom but that each could be sent

  back for viewing. The record does not show whether the jurors ever

  requested to view the exhibits.

¶ 47   Assuming, without deciding, that Procasky had a

  constitutional right to be present, we conclude that the People have

  shown beyond a reasonable doubt that any error did not contribute

  to the verdict.

¶ 48   Further, it is unlikely that Procasky’s presence would have

  resulted in a different ruling. The jury had already viewed the

  requested evidence during trial and heard testimony about the


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  evidence. Moreover, there was no question that Procasky possessed

  the gun, magazine, and ammunition on the day in question; the

  primary issue was whether he aimed it and shot at Butler. Without

  the corroborating testimony provided by Butler and law

  enforcement officers, none of the evidence requested for viewing by

  the jury — standing alone — proved any of the crimes for which

  Procasky was convicted. Therefore, we discern no prejudice caused

  by Procasky’s absence during this stage of the trial. Thus, any

  error stemming from Procasky’s absence was harmless beyond a

  reasonable doubt.

                          VII.   Conclusion

¶ 49   Accordingly, the judgment is affirmed in part and vacated in

  part. We vacate Procasky’s convictions for eluding a police officer

  and possession of a deadly weapon on school grounds and affirm

  his remaining convictions. We remand to the trial court to amend

  the mittimus.

       JUDGE FREYRE and JUDGE PAWAR concur.




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