Peo v. McClearen

18CA2058 Peo v McClearen 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2058

Teller County District Court No. 17CR116

Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin Lee McClearen,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE KUHN

Dailey and Dunn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Kevin Lee McClearen, appeals the judgment of

conviction entered after a jury found him guilty of stalking —

serious emotional distress, harassment — strike, shove, kick, and

three counts of violation of a protection order (VPO). We affirm.

I. Background

¶ 2

McClearen and N.C. married in February 2017. On May 2,

N.C. returned home from Indiana, where she’d spent much of the

prior few months caring for her terminally ill father. About forty

minutes after she got home, the couple started arguing because

McClearen wanted to have sex but N.C. was too tired and because

McClearen accused N.C. of being unfaithful. The argument

continued all night. N.C. described McClearen’s demeanor as “very

irrational, very animated, loud” and stated that she couldn’t get him

to calm down.

¶ 3

Lori Shifflet, N.C.’s lifelong friend, witnessed much of the

argument and recorded about forty minutes of it. Two video clips of

the recordings were admitted at trial.

¶ 4

The next morning, things escalated. N.C. testified that

McClearen chest bumped her and poked her chest. In response,

after telling him to get away from her, N.C. punched McClearen in

2

the chest. McClearen called 911, law enforcement responded, and

arrested him after determining that he was the initial aggressor and

had provoked N.C. into punching him.

¶ 5

Based on McClearen’s arrest, a protection order was issued

that listed N.C. as the protected party. The protection order

prohibited McClearen from having any contact with N.C. and

mandated that he vacate their shared home.

¶ 6

On a near-daily basis for a few weeks after the first protection

order was issued, McClearen repeatedly contacted N.C. by text

message, phone, and Facebook Messenger.

¶ 7

McClearen showed up at the house multiple times during that

period. Three days after the protection order was issued, he sent

N.C. a picture of himself that was taken in the house’s garage.

¶ 8

On May 8, after hearing McClearen’s truck come down the

road, N.C. saw him park in a second driveway that led to the

garage. N.C. called 911 and watched through the window from a

hallway as McClearen walked up to the back sliding glass door,

called out to her, and tried to open the door.

3

¶ 9

Law enforcement responded and stopped McClearen as he was

leaving the neighborhood. McClearen was arrested, and a second

protection order was issued.

¶ 10

McClearen continued to repeatedly contact N.C. after that

arrest and sent her messages numbering in the double digits nearly

every day during the third week of May.

¶ 11

On June 1, a neighbor delivered an envelope from McClearen

to N.C. The envelope contained legal papers to initiate annulment

proceedings but didn’t contain any personalized communication

from McClearen. N.C. and Shifflet called the police.

¶ 12

In early June, the communication died down. Then, on July

18, McClearen texted N.C. his son’s phone number. On July 21, he

texted N.C “where are my personal files, titles insurance for work all

son’s stuff from court.”

¶ 13

On October 22, McClearen and one of his employees met up in

the parking lot of a grocery store where N.C. worked so that they

could drive to a jobsite together. The store wasn’t open yet, but

N.C. was already working and saw McClearen in the parking lot

when she went outside for a smoke break. She called law

enforcement.

4

¶ 14

For his conduct between May and October, as relevant here,

the prosecution charged McClearen with stalking — serious

emotional distress, harassment for the initial physical altercation,

and multiple counts of VPO.

¶ 15

At the close of trial, the jury found McClearen guilty of one

count of stalking, one count of harassment, and three counts of

VPO: one for the May 8 contact; one for contact from May 15

through May 18; and one for the July 21 contact.1 The jury found

that McClearen committed all of the offenses as acts of domestic

violence. The court sentenced McClearen to an aggregate term of

eight years in the custody of the Department of Corrections.

II. Analysis

¶ 16

On appeal, McClearen contends as follows: (1) the stalking —

serious emotional distress statute is unconstitutionally overbroad

on its face; (2) the evidence was insufficient to support his stalking

conviction; (3) the evidence was insufficient to support his VPO

convictions; (4) the court erred by giving a quasi-testimonial answer

1 The court granted McClearen’s motion for judgment of acquittal on

the three remaining VPO counts.

5

in response to a jury question that directed a verdict for the

prosecution; (5) the court erroneously denied his motion for a

mistrial after a witness testified to inadmissible prior bad act

evidence; and (6) the court violated his right to be present when it

gave the jury a mid-deliberation instruction and played video

evidence in his absence. We address his arguments in turn.

A. Constitutionality of the Stalking — Serious Emotional Distress

Statute

¶ 17

McClearen first contends that the stalking — serious

emotional distress statute is unconstitutionally overbroad on its

face. Relying on another division’s recent decision in People v.

Pellegrin, 2021 COA 118, we disagree.

1. Standard of Review and Legal Standards

¶ 18

We review a facial constitutional challenge to a statute de

novo. People v. Plemmons, 2021 COA 10, ¶ 9 (cert. granted Sept.

13, 2021). We presume that statutes are constitutional, and the

burden is on the defendant to prove that the challenged statute is

unconstitutional beyond a reasonable doubt. Pellegrin, ¶ 29;

Plemmons, ¶ 9.

6

¶ 19

A statute is overbroad if its scope is so broad that it restricts

or has a chilling effect on constitutionally protected speech. People

v. Graves, 2016 CO 15, ¶ 12. Under the overbreadth doctrine, a

litigant may facially challenge a law that impacts activity protected

by the First Amendment, even where the litigant’s own conduct is

not protected. Id. at ¶¶ 12-13.

¶ 20

To prevail, “a litigant must show that the overbreadth of the

statute is both real and substantial, judged in relation to the

statute’s plainly legitimate sweep.” Id. at ¶ 14. Unless the statute

reaches a substantial amount of constitutionally protected speech,

an overbreadth challenge fails. Id. at ¶ 15. Where a statute

reaches protected speech but is not substantially overbroad,

whatever overbreadth may exist should be addressed on a case-by-

case basis. Id.

2. Discussion

¶ 21

Under section 18-3-602(1)(c), C.R.S. 2021,

[a] person commits stalking if directly, or

indirectly through another person, the person

knowingly . . . [r]epeatedly follows, approaches,

contacts, places under surveillance, or makes

any form of communication with another

person . . . in a manner that would cause a

reasonable person to suffer serious emotional

7

distress and does cause that person . . . to

suffer serious emotional distress.

¶ 22

McClearen acknowledges that our supreme court rejected a

facial overbreadth challenge to a substantially similar statute in

People v. Cross, 127 P.3d 71 (Colo. 2006), but asks us to depart

from its holding in light of the United States Supreme Court’s

decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015).

¶ 23

In Cross, the supreme court held that the stalking statute

then in effect was not overbroad and did not sweep in a substantial

amount of constitutionally protected speech because it only

criminalized conduct of a particular nature — repeated acts of

“inappropriate intensity, persistence, and possessiveness” that had

a particular effect — objectively and subjectively causing serious

emotional distress. 127 P.3d at 79 (quoting § 18-9-111(4)(a), C.R.S.

2005)). That category of conduct is not constitutionally protected.

Id.

¶ 24

In Reed, the Supreme Court struck down a municipal

ordinance that exempted certain categories of signs including

“[i]deological” signs, “[p]olitical” signs, and “[t]emporary [d]irectional

[s]igns [r]elating to a [q]ualifying [e]vent, loosely defined as signs

8

directing the public to a meeting of a nonprofit group” from its

prohibition on the display of outdoor signs without a permit. 576

U.S. at 159-60. The Court held that the ordinance was content

based on its face because how signs were regulated depended

entirely on their communicative content. Id. at 164.

¶ 25

Content-based laws — those that target speech based on its

communicative content — are presumptively unconstitutional and

subject to strict scrutiny, meaning they can only be justified if the

government proves that they are narrowly tailored to serve

compelling state interests. Id. at 163. Content-based laws include

those that are facially neutral but cannot be “justified without

reference to the content of the regulated speech,” or that were

adopted by the government “because of disagreement with the

message [the speech] conveys.” Id. at 164 (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)).

¶ 26

McClearen argues that, under Reed, the stalking — serious

emotional distress statute is a content-based regulation that is

presumptively unconstitutional and subject to strict scrutiny. He

contends that, after Reed, Cross is no longer valid precedent

9

because it applied an incorrect standard of review and level of

scrutiny. We disagree.

¶ 27

As Pellegrin holds, Colorado’s stalking statute isn’t content

based. ¶ 34. The statute doesn’t target speech based on its

communicative content but instead proscribes a specific type of

conduct: repeated actions that would cause a reasonable person to

suffer serious emotional distress. Id. “‘[T]he statute does not

criminalize innocuous behavior,’ but criminalizes a series of

conduct without a significant impact on constitutionally protected

speech.” Id. (quoting Cross, 127 P.3d at 78-79). Because the

statute isn’t content based, it isn’t presumptively unconstitutional

or subject to strict scrutiny. Cross remains good law and we are

bound by its result.

¶ 28

As we are bound by Cross, we also reject McClearen’s reliance

on People v. Relerford, 2017 IL 121094, a case where the Illinois

Supreme Court held that a stalking statute similar to Colorado’s

was unconstitutionally overbroad. See People v. Richardson, 181

P.3d 340, 343-45 (Colo. App. 2007); see also People v. Smith, 183

P.3d 726, 729 (Colo. App. 2008) (rejecting defendant’s argument

10

that supreme court precedent was wrongly decided because we are

bound by Colorado Supreme Court decisions).

B. Sufficiency of the Evidence, Stalking

¶ 29

Next, McClearen contends that the People presented

insufficient evidence to support his stalking conviction. We

disagree.

1. Standard of Review and Legal Standards

¶ 30

We review challenges to the sufficiency of the evidence de

novo. McCoy v. People, 2019 CO 44, ¶ 34; Maestas v. People, 2019

CO 45, ¶ 2. In evaluating a sufficiency challenge, we consider

whether the evidence, when viewed as a whole and in the light most

favorable to the prosecution, was substantial and sufficient to

support a conclusion by a reasonable mind that the defendant was

guilty beyond a reasonable doubt. People v. Wagner, 2018 COA 68,

¶ 29; People v. Perez, 2016 CO 12, ¶ 8.

¶ 31

To obtain a stalking — serious emotional distress conviction,

the prosecution must prove objective and subjective elements: that

the defendant’s conduct would cause a reasonable person to suffer

serious emotional distress and that the conduct actually caused the

11

victim serious emotional distress. § 18-3-602(1)(c); see Cross, 127

P.3d at 77.

2. Discussion

¶ 32

McClearen argues that the People presented insufficient

evidence on the objective element. He contends that his conduct

towards N.C. was relatively innocuous and typical of someone

experiencing a contentious marital breakdown. He argues that his

conduct, while likely to cause a reasonable person to experience

ordinary frustration, annoyance, or apprehension, would not cause

a reasonable person in N.C.’s position to experience serious

emotional distress.

¶ 33

We disagree. The evidence presented at trial showed that

McClearen repeatedly contacted N.C. (sometimes sending over forty

messages per day) across multiple communication platforms on a

near-daily basis in the weeks following his initial arrest. He came

to the house — which was located in an area that took law

enforcement a long time to respond to — multiple times. Once, he

sent N.C. a picture of himself in the home’s garage. Another time,

after N.C. stopped responding to his messages, he showed up in the

12

evening, tried to open the back door, and called out N.C.’s name as

she hid inside.

¶ 34

Importantly, he did all of these things in violation of court

orders. In the span of a month, the court issued three separate

protection orders that prohibited McClearen from contacting N.C. or

visiting the house. Despite being arrested multiple times, he

continued to repeatedly violate the protection orders.

¶ 35

Taken together, this evidence, when viewed in the light most

favorable to the prosecution, was sufficient to show McClearen’s

conduct would cause a reasonable person to experience serious

emotional distress. See Wagner, ¶ 29

C. Sufficiency of the Evidence for the VPO Convictions

¶ 36

McClearen contends that the VPO convictions must be vacated

because the prosecution presented insufficient evidence that he was

personally served with the protection orders or that he acquired

actual knowledge of their contents from the court or law

enforcement. See § 18-6-803.5, C.R.S. 2021. We are not

persuaded.

¶ 37

At trial, the prosecution admitted three protection orders into

evidence: the first was dated May 4, the second May 9, and the

13

third June 14. Each order bore the seal of the Teller County

Combined Courts. N.C. confirmed the orders were signed by

McClearen, testifying that she recognized his handwriting, having

seen his signature “many, many, many times.” Above McClearen’s

signature, each of the orders states that “[b]y signing, I acknowledge

receipt of this Order.”

¶ 38

The prosecution also presented evidence that on May 8, after

being at the house, McClearen sent N.C. a message that said, “I

hope you did not call the cops on me for nothing, just needed tools

or I’m not working . . . .” On May 14, N.C. texted McClearen, “[w]e

could have had the protection order changed, but you have to —

you have to have it right now or it’s over.”

¶ 39

Notably, three separate law enforcement officers testified that

they’d discussed the existence of protection orders with McClearen.

¶ 40

Deputy Maria Meyers testified that she contacted McClearen

on May 8 after N.C. called 911 to report he’d been at the house.

Deputy Meyers specifically discussed the protection order with

McClearen, but McClearen told her he hadn’t been aware there was

a protection order in place before he went to the house. Following

14

the conversation, McClearen was arrested and transported to the

county jail.

¶ 41

Deputy Sinel Lilic testified that he interviewed McClearen on

May 28 regarding a report that McClearen had been riding his

motorcycle near the house. In response, McClearen told Deputy

Lilic that “he was just going to a neighbor’s house.”

¶ 42

Deputy Jacqueline Gaffney testified that, when she spoke to

McClearen outside the grocery store in October, he acknowledged

that he knew a protection order was in place but didn’t believe he

violated it.

¶ 43

It’s true that much of the evidence supporting the convictions

was circumstantial. But, a defendant’s knowledge may be inferred

from circumstantial evidence. People v. Donald, 2020 CO 24, ¶ 37.

There was evidence before the jury that would have allowed it to

make the inferences necessary to conclude McClearen had actual

knowledge of the protection orders — i.e. that he was the one who

signed the orders, that the court followed the law and properly

15

advised him of the contents of the orders when they were issued,2

that his May 8 text to N.C. about not calling the police was a tacit

admission that he knew he wasn’t allowed to go to the house, and

that Deputy Meyers fully explained the contents of the protection

orders when she arrested McClearen on May 8.

¶ 44

While the presence of stacked inferences is one factor a court

can consider, it is not alone dispositive of a sufficiency claim. See

id. at ¶ 17. And here, the chain of inferences is not so attenuated

that it would be unreasonable for us to rely on it to sustain the VPO

convictions. See id. at ¶ 30.

¶ 45

Overall, the evidence, when viewed as a whole and in the light

most favorable to the prosecution, was substantial and sufficient to

support the convictions. See id. at ¶ 18.

D. Jury Question

¶ 46

McClearen contends that if we don’t vacate his VPO

convictions, we should reverse them because the court erred by

2 Even if the admission of this evidence was in error, “[i]n reviewing

a sufficiency of the evidence contention, an appellate court must

consider evidence that should have been excluded at trial.” People

v. Alemayehu, 2021 COA 69, ¶ 15 n.2.

16

answering a jury question in a manner that directed a verdict for

the prosecution. We conclude that even if there was error here, it

isn’t reversible.

1. Standard of Review

¶ 47

“[T]he decision of whether to ask a juror’s question is

committed to the sound discretion of the trial court.” Medina v.

People, 114 P.3d 845, 847 (Colo. 2005). Whether to provide

additional instructions in response to a jury question is also left to

the trial court’s discretion. People v. Burnell, 2019 COA 142, ¶ 36.

The trial court abuses its discretion if its ruling is manifestly

arbitrary, unreasonable, or unfair, or where it is based on an

erroneous view of the law. People v. Manzanares, 2020 COA 140M,

¶ 28.

¶ 48

Because defense counsel did not preserve the issue, we review

for plain error. Hagos v. People, 2012 CO 63, ¶ 14. “[P]lain error

occurs when there is (1) an error, (2) that is obvious, and (3) that so

undermines the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

Cardman v. People, 2019 CO 73, ¶ 19.

17

2. Discussion

¶ 49

At the end of Shifflet’s testimony, a juror submitted a question

to the court asking, “[d]id Kevin have the option of not signing the

protection order?”

¶ 50

The parties discussed the question at the bench. The court

noted that, by statute, a defendant is required to be advised and

acknowledge the protection order in court and in writing and that a

defendant can’t bond out without signing the protection order.

Defense counsel pointed out that a defendant can choose not to

sign the protection order and remain in custody.

¶ 51

In response to the question and without objection from the

defense, the court, quoting the applicable statute, instructed the

jury:

And then next is a question about whether or

not [McClearen] had the option of not signing

the protection order. I’m just going to read to

you directly from the statute, the pertinent

part of the statute, the court is required to

advise the defendant on the record of the

protection order. And the court shall further

require the defendant to acknowledge the

protection order in court and in writing prior to

the release as a condition of any bond further

release of the defendant.

18

¶ 52

Even if we assume it was incorrect of the trial court to instruct

the jury on a point of law during witness testimony, we conclude

that any such error wasn’t substantial here. An error is substantial

if it so undermined the fundamental fairness of the trial itself as to

cast serious doubt on the reliability of the conviction. People v.

Marx, 2019 COA 138, ¶ 11. Here, even without the court’s

instruction, the evidence of guilt was overwhelming. See People v.

Miller, 113 P.3d 743, 750 (Colo. 2005) (“[A]n erroneous jury

instruction does not normally constitute plain error . . . where the

record contains overwhelming evidence of the defendant’s guilt.”).

As described in Part II.C, the evidence of guilt — that McClearen

signed the protection orders, discussed them with law enforcement

when he was arrested on May 8 and again on May 28, and that his

statements in the text messages implicitly acknowledge the

existence of the protection orders — was overwhelming.

E. Mistrial

¶ 53

McClearen next contends that the court erred by denying his

motion for a mistrial after a prosecution witness testified to

inadmissible evidence. We disagree.

19

1. Standard of Review

¶ 54

We review the court’s denial of a request for a mistrial for

abuse of discretion. People v. Chirinos-Raudales, 2021 COA 37,

¶ 26. The trial court abuses its discretion “only when inadmissible

evidence is likely to have substantially prejudiced the jurors despite

the use of any alternative remedies.” Id. (quoting People v. Salas,

2017 COA 63, ¶ 9). A mistrial is the most drastic of remedies and is

only warranted where the prejudice to the defendant is too

substantial to be cured by other means. Id. at ¶ 27.

2. Discussion

¶ 55

On May 3, Detective Gaffney responded to McClearen’s initial

911 call and interviewed him at the house. On direct examination,

the prosecutor questioned Detective Gaffney about the interview:

Prosecutor: Okay. What did [McClearen] tell

you?

Detective Gaffney: Um, he stated that he had

called 911 because he and his wife, who he

identified as N.C., had been in a verbal

argument, and during that argument she had

struck him in the chest, one time.

Prosecutor: And did he say anything else about

what he wanted to have happen out of the

situation?

20

Detective Gaffney: Um, [McClearen] stated,

um, that he had been in a similar situation,

and that he believed it was her turn to go to

jail this time.

¶ 56

Defense counsel objected on CRE 404(b) grounds and

requested a mistrial. Finding that the testimony was vague and

ambiguous, the court denied the motion but offered to provide a

curative instruction. After expressing concern that highlighting the

evidence would do more harm than good, the defense declined the

offer.

¶ 57

For three reasons, we conclude that the trial court — which

was in a better position to contemporaneously evaluate any adverse

effect the improper testimony had on the jury — acted within its

discretion in denying the motion. See People v. Van Meter, 2018

COA 13, ¶ 9.

¶ 58

First, the testimony was vague and ambiguous. See Salas,

¶ 12. Detective Gaffney didn’t provide detailed testimony of any

specific incidents, and the record supports the court’s finding that

it wasn’t entirely clear that the testimony referred to McClearen’s

prior criminality.

21

¶ 59

Second, the testimony was fleeting, which minimized its

potential prejudice. See People v. Compos, 2019 COA 177, ¶ 37,

aff’d in part, vacated in part, 2021 CO 19, ¶ 4. It encompassed

three lines of transcript in a three-day trial featuring multiple

witnesses, the majority of whom testified in detail about more

serious allegations of criminality. See People v. Krueger, 2012 COA

80, ¶ 72 (the district court didn’t abuse its discretion in denying a

mistrial where the reference to inadmissible evidence was brief and

the court offered to give a curative instruction, which the defense

declined).

¶ 60

Third, there’s no indication in the record that the prosecutor

intentionally elicited the information. See People v. Johnson, 2017

COA 11, ¶ 46; see People v. Everett, 250 P.3d 649, 662 (Colo. App.

2010) (“A motion for a mistrial is more likely to be granted where

the prosecutor intentionally elicited improper character evidence.”).

Though the prosecutor objected to the motion, she made an offer of

proof that she expected a different, admissible answer to her

question, acknowledged that she hadn’t properly prepared the

witness, and apologized to the court for introducing inadmissible

evidence.

22

F. Right to Be Present

¶ 61

Finally, McClearen contends that the trial court violated his

right to be present by allowing the jury to re-watch video exhibits

during deliberations and providing an additional instruction while

he was absent from the courtroom. We perceive no error.

1. Additional Background

¶ 62

After the jury retired to deliberate, the court informed defense

counsel of its standard procedure for handling jury requests to

re-watch video exhibits and asked if the defense wanted to be

notified:

Court: All right. Typically what I do, [defense

counsel], is if there’s a request to view the

video, I give them the – the Duval instruction

that they’re allowed to view it once without any

communication occurring in front of my staff.

It is a supervised viewing and not to pay any

undue attention to it. I can get the exact

wording of that instruction for you. Would you

want to be notified if I get a request to watch

the video?

Defense counsel: No, I mean I – I’d like to find

out, but it doesn’t have to be when it happens.

¶ 63

The court didn’t ask the defense whether McClearen himself

wished to be notified or whether he wanted to be present if the jury

watched the videos. Aside from saying that she didn’t wish to be

23

notified, defense counsel did not make any statements regarding

McClearen’s position on whether he wanted to be present. The

court told McClearen that he didn’t have to stay in the courthouse

during deliberations, but that he needed to stay within a

five-minute radius of the building.

¶ 64

During deliberations, the jury asked to re-watch the videos

from the night of the initial incident. Before playing the recordings,

the court instructed the jury, “[l]adies and gentlemen of the jury,

you may observe the videotape one time in open court and not to

give it any special weight. No juror questions are permitted during

viewing. My staff is available to assist you in the operation of the

computer.”

¶ 65

A juror asked, “did you say we’re allowed to watch it once?”

The court responded, “if there’s a problem with — you need

something repeated, yeah. But if something couldn’t — you

couldn’t hear it, and you need it replayed — I understand the

acoustics here are terrible; maybe we should just close all the

windows while you’re hearing and viewing it — and if there’s an

issue, she can rewind that part.”

24

¶ 66

The jury watched Exhibit 2B in its entirety. Then, it

submitted a written request to re-watch the second portion of the

video. The court granted the request and replayed the second

section of the video. The court did not notify the prosecutor,

defense counsel, or McClearen about the jury’s request or its

decision to replay the video.

2. Standard if Review and Legal Standards

¶ 67

Whether a trial court violated a defendant’s right to be present

is a constitutional question that we review de novo. People v.

Guzman-Rincon, 2015 COA 166M, ¶ 29. A criminal defendant has

the right to be present at all critical stages of the prosecution. Zoll

v. People, 2018 CO 70, ¶ 19. But the right to presence is not

absolute. Id. at ¶ 20. The defendant’s presence is “only required ‘to

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

absence.’” Id. (quoting Kentucky v. Stincer, 482 U.S. 730, 745

(1987)). A defendant’s presence “is not constitutionally guaranteed

when the defendant’s presence would be useless or when the

benefit of the defendant’s presence would be ‘but a shadow.’” Id.

(quoting Stincer, 482 U.S. at 745).

25

¶ 68

This court has previously determined that replaying a tape

that had previously been played during the trial was not a critical

stage of the proceedings. People v. Valdez, 725 P.2d 29, 33 (Colo.

App. 1986). In replaying the tape, the jury was “merely examining a

piece of real evidence.” Id. The presence of counsel may also not be

necessary depending on the particular facts of the court’s playback

procedures. People v. Auman, 67 P.3d 741, 766 (Colo. App. 2002),

as modified on denial of reh’g (Nov. 14, 2002), rev’d on other

grounds, 109 P.3d 647 (Colo. 2005).

3. Discussion

¶ 69

Under these circumstances, we conclude that the court did

not violate McClearen’s right to be present. Any deviation from the

playback procedure described to the defense was minor. The court

did not provide any new information but merely restated an

instruction it had already given. The clip was relatively short, was

only replayed once under the “watchful eye of the trial judge,” and

had been admitted into evidence and published during trial without

objection. See Zoll, ¶¶ 22-27. On this record, we do not conclude

that a just and fair hearing was thwarted by McClearen’s absence

while the video clips were replayed for the jury. However, the better

26

practice would be to alert all parties — and to permit counsel and

the defendant to be present — when the jury requests to review a

piece of evidence.

III. Conclusion

¶ 70

The judgment is affirmed.

JUDGE DAILEY and JUDGE DUNN concur.