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 August 23, 2018
2018COA121
No. 16CA0039, People v. Jamison — Crimes — Introducing Contraband in the First Degree — Possession of Contraband in the First Degree; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses
A division of the court of appeals considers whether the
defendant’s convictions for introducing contraband in the first
degree and possessing contraband in the first degree merge. The
division concludes that the convictions should have merged at
sentencing because possessing contraband in the first degree under
section 18-8-204.1(1), C.R.S. 2017, is a lesser included offense of
introducing contraband by making while confined under section 18-
8-203(1)(b), C.R.S. 2017. Further, the division determines that the
error here was plain because supreme court authority dictates that
convictions for possession offenses must merge into convictions for
offenses such as distribution and manufacturing. Thus, to the extent the People rely on People v. Etchells, 646 P.2d 950 (Colo.
App. 1982), the division concludes that it is not directly on point
and that more recent supreme court decisions govern the issue of
merger here. The division therefore vacates the defendant’s
conviction for possessing contraband in the first degree.
The division also considers and rejects the defendant’s
contentions that the trial court erred in rejecting defense-tendered
jury instructions on lesser nonincluded offenses and that
prosecutorial misconduct requires reversal.
Accordingly, the division affirms in part, vacates in part, and
remands the case with directions. COLORADO COURT OF APPEALS 2018COA121
Court of Appeals No. 16CA0039 Lincoln County District Court No. 15CR13 Honorable Jeffrey K. Holmes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kyle Lee Jamison,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE TAUBMAN Welling and Martinez*, JJ., concur
Announced August 23, 2018
Cynthia H. Coffman, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 Defendant, Kyle Lee Jamison, appeals his judgment of
conviction entered on a jury verdict finding him guilty of one count
of introducing contraband in the first degree and one count of
possessing contraband in the first degree. We affirm in part, vacate
in part, and remand with directions.
I. Background
¶2 Jamison was an inmate at a Department of Corrections (DOC)
detention facility. During a random search of his cell, a corrections
officer found an altered toothbrush behind Jamison’s mattress.
The toothbrush had been sharpened at one end and a razor blade
had been affixed to the other end. In an interview with a DOC
investigator, Jamison said that he used the device to cut fabric
when making clothing.
¶3 He was charged with introducing contraband and possessing
contraband, both in the first degree. At trial, the People called the
corrections officer who had found the toothbrush and the
investigator who had interviewed Jamison. Both testified that the
toothbrush could be used as a weapon. The defense called
Jamison’s cellmate, who testified that he believed Jamison had
used the toothbrush to score, fold, and cut paper and cardstock.
1 The jury found Jamison guilty of both charges. He was sentenced
to five years on each count, with the sentences to run concurrently.
¶4 On appeal, Jamison contends that the trial court committed
reversible error in (1) rejecting defense-tendered jury instructions
on lesser nonincluded offenses; (2) permitting the prosecutor to
refer to the toothbrush as a “dangerous instrument” and to elicit
testimony to the same effect; and (3) entering convictions for both a
greater offense, introducing contraband by making while confined,
and a lesser included offense, possession of contraband. We
disagree with his first two contentions but agree with his final
contention. Thus, we affirm the introducing contraband conviction,
vacate the possession of contraband conviction, and remand for the
trial court to amend the mittimus accordingly.
II. Jury Instructions on Lesser Nonincluded Offenses
¶5 Jamison contends that the trial court erred in refusing to
instruct the jury on lesser nonincluded offenses. We disagree.
A. Additional Facts
¶6 The defense tendered two jury instructions, one on
introducing contraband in the second degree, § 18-8-204(1)(b),
C.R.S. 2017, and one on possessing contraband in the second
2 degree, § 18-8-204.2(1), C.R.S. 2017. In the trial court, Jamison
initially argued that the second degree offenses were lesser included
offenses of the charged crimes. In response, the prosecutor argued
that the second degree offenses were not lesser included offenses
because the second degree offenses required proof of an element the
first degree offenses did not — namely, as relevant here, introducing
or possessing “contraband” as defined in section 18-8-204(2).
¶7 The defense later requested that, in the alternative, the
instructions be submitted as lesser nonincluded offenses. The
defense argued that the evidence provided the jury with a rational
basis to find that the toothbrush fell within the definition of
contraband in section 18-8-204(2)(b) — “Any tool or instrument
that could be used to cut fence or wire, dig, pry, or file.” In
response, the prosecutor argued that there had been “no evidence
adduced” to support the defense’s contention that the toothbrush
could be used for the purposes set out in section 18-8-204(2)(b).
¶8 In a bench ruling, the trial court held as follows:
The Court does not find there has been any evidence that this particular item can be used to cut fence or wire, dig, pry, or file. The evidence instead has been presented by the People that this is an item that falls within the
3 purview of being a dangerous instrument[,] and there has been a d[ea]rth of other evidence either from the People or from the defense that it would be something to be used for the purposes of [section 18-8-204(2)(b)].
The only other suggestions was this was an item used for a craft tool to cut paper or to hold down paper or cardboard. . . . The Court is going to find that there is not a rational basis for the jury to acquit the defendant of the offenses that are charged and simultaneously find him guilty of the lesser offenses whether treated as lesser nonincluded offenses or as lesser included offenses.
Thus, the trial court rejected the defense-tendered instructions.
B. Standard of Review
¶9 “Colorado cases have not conclusively established the
standard of appellate review applicable to denials of lesser
nonincluded offense instructions.” People v. Wartena, 2012 COA
12, ¶ 29, 296 P.3d 136, 141; see also People v. Rubio, 222 P.3d 355,
360 (Colo. App. 2009) (noting unresolved standard, but reversing
under even abuse of discretion review).
¶ 10 Nevertheless, in Wartena, the division concluded that
“[w]hether the record contains sufficient evidence to support
instruction on a lesser offense is a factual inquiry reviewed for an
abuse of discretion.” ¶ 30, 296 P.3d at 141. We will follow the
4 Wartena division and apply that standard of review here. See
People v. Nozolino, 2014 COA 95, ¶ 43, 350 P.3d 940, 948
(reviewing trial court’s denial of lesser nonincluded offense
instruction for abuse of discretion when the denial was made “on a
factual basis”).
C. Applicable Law
1. First Degree Introducing and Possessing Contraband
¶ 11 As relevant here, “[a] person commits introducing contraband
in the first degree if he or she knowingly and unlawfully . . . [b]eing
a person confined in a detention facility, makes any dangerous
instrument.” § 18-8-203(1)(b), C.R.S. 2017; see also § 18-8-
203(1)(a) (defining alternative way of committing offense of
introducing contraband in the first degree). Section 18-8-203(1)(a)
lists various items that are contraband for the purposes of first
degree introducing contraband, including a dangerous instrument.
¶ 12 As for possession of contraband in the first degree, “[a] person
being confined in a detention facility” commits that offense “if he
knowingly obtains or has in his possession contraband as listed in
section 18-8-203(1)(a).” § 18-8-204.1(1), C.R.S. 2017; see also
5 § 18-8-204.1(3) (“Possession of contraband in the first degree
involving a dangerous instrument is a class 4 felony.”).
¶ 13 A dangerous instrument includes, as relevant here, an
unauthorized “knife or sharpened instrument . . . or any other
device, instrument, material, or substance which is readily capable
of causing or inducing fear of death or bodily injury.” § 18-8-
203(4).
2. Second Degree Introducing and Possessing Contraband
¶ 14 “A person commits introducing contraband in the second
degree if he or she knowingly and unlawfully . . . [b]eing a person
confined in a detention facility, makes any contraband.” § 18-8-
204(1)(b). Under the statute defining introducing contraband in the
second degree, contraband “does not include any article or thing
referred to in section 18-8-203,” the first degree offense. § 18-8-
204(2). Instead, contraband as defined in section 18-8-204(1)(b)
includes, among other items, “[a]ny tool or instrument that could be
used to cut fence or wire, dig, pry, or file.” § 18-8-204(2)(b).
¶ 15 As relevant here, “[a] person being confined in a detention
facility commits the crime of possession of contraband in the
6 second degree if he knowingly obtains or has in his possession
contraband as defined in section 18-8-204(2).” § 18-8-204.2(1).
¶ 16 Thus, for purposes of both introducing and possessing
contraband in the second degree, a dangerous instrument as
defined in section 18-8-203(4) does not fall within the definition of
contraband. See generally § 18-8-204(2).
3. Lesser Nonincluded Offense Instructions
¶ 17 “[A] criminal defendant is entitled to have the jury presented
with the option to convict him of a lesser non-included offense, so
long as a rational evidentiary basis exists to simultaneously acquit
him of the charged offense and convict him of the lesser offense.”
People v. Naranjo, 2017 CO 87, ¶ 15, 401 P.3d 534, 537. A lesser
nonincluded offense is “a lesser offense that requires proof of at
least one element not contained in the charged offense.” Id. at ¶ 17,
401 P.3d at 538.
D. Analysis
¶ 18 Jamison contends that the trial court abused its discretion in
refusing to instruct the jury on the two lesser nonincluded offenses,
7 second degree introducing contraband and second degree
possession of contraband.1 We disagree.
¶ 19 As noted, to convict Jamison of either second degree offense,
the jury would have needed to find beyond a reasonable doubt that
the toothbrush “could be used to cut fence or wire, dig, pry, or file.”
§ 18-8-204(2)(b); see also § 18-8-204(1)(b); § 18-8-204.2(1).
¶ 20 Jamison argues, as he did in the trial court, that there was a
rational basis for the jury to acquit him of the first degree offenses
and instead convict him of the second degree offenses. He bases
this contention on two pieces of evidence — first, the cellmate’s
testimony that Jamison used the toothbrush to cut paper or
cardstock; and, second, his own statement during the interview
with the DOC investigator (an audio recording of which was played
for the jury) that he used the toothbrush for cutting cloth while
making clothing.
1 Jamison has expressly abandoned his argument that second degree introducing and possessing contraband are lesser included offenses of their first degree counterparts. See People v. Borrego, 538 P.2d 1339, 1342 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)) (“[T]he offense of introducing contraband in the second degree is not a lesser included offense of introducing contraband in the first degree.”).
8 ¶ 21 We disagree with Jamison’s contention that this evidence
“amply showed that the altered toothbrush could be used to cut
fence or wire.” The evidentiary basis Jamison relies on simply does
not square with the statutory language in section 18-8-204(2)(b)
because while the evidence tended to show that the toothbrush
could cut fabric or paper, there was no evidence that it could cut
fence or wire.
¶ 22 Finally, we do not find persuasive Jamison’s argument that
section 18-8-204(2)(b) does “not demand evidence that the
instrument was used to cut fence or wire . . ., only that it was
capable of doing so.” In this case, that is a distinction without a
difference. Just as neither party introduced evidence that the
toothbrush had been used to cut materials like wire or fence, they
did not provide evidence that the toothbrush was capable of cutting
those materials.
¶ 23 Thus, we conclude that the trial court did not abuse its
discretion in rejecting the defense-tendered instructions on the
lesser nonincluded offenses.
9 III. Prosecutor’s Use of the Term “Dangerous Instrument”
¶ 24 Jamison contends that the trial court erred in permitting the
prosecutor to refer to the toothbrush as a dangerous instrument
and to elicit testimony to the same effect. We note that Jamison
raises this claim as an evidentiary issue, arguing that the trial court
abused its discretion in permitting the prosecutor to offer his
opinion. However, we view this as a claim of prosecutorial
misconduct and address it as such. See generally People v. Fortson,
2018 COA 46M, ¶ 14, ___ P.3d ___, ___ (reviewing prosecutor’s
challenged statements about inadmissible evidence during opening
statement, closing argument, and examination of witnesses as
prosecutorial misconduct claim). Though we agree that some of the
prosecutor’s statements were improper, we perceive no basis for
reversal.
¶ 25 On numerous occasions, the prosecutor referred to the
toothbrush as a “dangerous instrument.” The defense did not
object to the following such references:
10 During the People’s opening statement, the prosecutor
said that the corrections officer “found an object that he
recognized as a dangerous instrument” in Jamison’s cell.
During direct examination, the prosecutor asked what
the corrections officer did “[f]ollowing the discovery of the
dangerous instrument.”
During direct examination, the prosecutor asked the
DOC investigator whether he had received information
regarding “finding a dangerous instrument” in the
facility; whether Jamison admitted during the interview
that he had “made that dangerous instrument”; and
whether the investigator was familiar with the definition
of “dangerous instrument” under Colorado law.
During closing argument, the prosecutor stated that the
corrections officer had “seized [the toothbrush] because it
was a dangerous instrument” and argued that the DOC
investigator had said, “Yeah, that’s a dangerous
instrument. That’s a weapon.”
¶ 26 In contrast, during the People’s direct examination of the DOC
investigator, the defense objected multiple times to the prosecutor’s
11 reference to the toothbrush as a “dangerous instrument.” First, the
defense objected under CRE 403 when the prosecutor asked the
investigator, “based on [his] education, training, [and] experience as
a law enforcement officer, what would [he] consider the instrument
that was found.” The trial court sustained the objection “as to [the]
form of the question.” The following exchange then took place:
[The People]: Okay. Investigator, based on your education, training, and experience, is this instrument a weapon?
A: Yes, sir, it is.
Q: Is it capable of causing bodily injury or death?
A: Yes, sir, it can.
Q: Does it also constitute a dangerous instrument within the meaning of Colorado law?
[The Defense]: Judge, I’m going to renew the 403 objection.
THE COURT: Sustained.
¶ 27 During redirect examination, the prosecutor again asked
similar questions:
[The People]: And I think you clarified that an inmate while they can have a toothbrush are they allowed to alter that in any way that would make that a dangerous instrument?
12 A: No.
Q: And would putting a point on the end of that toothbrush turn that into a dangerous instrument?
A: Yes, it would.
Q: So with [the toothbrush] since it has a sharpened end, does that constitute a dangerous instrument under --
A: Yes.
[The Defense]: We object, 403. The district attorney has been trying to get into this. This is 403. The Court already sustained this objection earlier.
THE COURT: I will let you finish your question. Answer, please.
[The People]: So in this case is this an alter[]ation that is disallowed by both Colorado Department of Corrections and Colorado law?
A: Yes, sir.
[The Defense]: Renewing my objection, 403.
THE COURT: Okay. I will sustain the objection. The jury is to disregard the responses to that question as well as I think there w[ere] responses given to questions previously, that’s disregarding [sic] too.
The prosecutor then asked the investigator whether the razor blade
was “attached to a dangerous instrument toothbrush,” to which the
13 defense renewed its CRE 403 objection. The trial court sustained
the objection “[a]s to characterization.”
¶ 28 We engage in a two-step analysis in reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, we decide whether, under the proper standard of review,
any misconduct warrants reversal. Id.
¶ 29 We review conduct to which a defendant did not object for
plain error. Id. at 1097. Under this standard, reversal is warranted
only when prosecutorial misconduct is “flagrantly, glaringly, or
tremendously improper,” Domingo-Gomez v. People, 125 P.3d 1043,
1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo.
App. 1997)), and “so undermines the fundamental fairness of the
trial itself as to cast serious doubt on the reliability of the jury’s
verdict,” id.
¶ 30 We review conduct to which a defendant raised a
contemporaneous objection at trial for harmless error. Wend, 235
P.3d at 1097. Prosecutorial misconduct is harmless if it did not
14 “substantially influence the verdict or adversely affect the fairness
of the proceedings.” People v. Whitman, 205 P.3d 371, 384-85
(Colo. App. 2007).
¶ 31 “[P]rosecutorial remarks that evidence personal opinion,
personal knowledge, or inflame the passions of the jury are
improper.” Domingo-Gomez, 125 P.3d at 1050. Additionally, it is
improper for a prosecutor to purposefully ask a question which he
or she knows will elicit an inadmissible answer. Fortson, ¶ 14, ___
P.3d at ___. However, a prosecutor “can properly comment on
reasonable inferences stemming directly from the facts in evidence
during closing argument.” Domingo-Gomez, 125 P.3d at 1051.
¶ 32 Appellate courts consider several factors in determining
whether prosecutorial misconduct was prejudicial, including the
nature of the error, the pervasiveness of the misconduct, the
context, and the overall strength of the evidence supporting the
convictions. People v. McBride, 228 P.3d 216, 225 (Colo. App.
2009).
15 D. Analysis
¶ 33 Jamison contends that the prosecutor’s pervasive references to
the toothbrush as a dangerous instrument were in error and
require reversal. While we agree that the prosecutor’s statements
were largely improper, we perceive no basis for reversal.
¶ 34 At the outset, we disagree with Jamison’s contention that the
prosecutor erred by referring to the toothbrush as a dangerous
instrument during closing argument. A prosecutor may root closing
argument in the facts adduced at trial, and we consider the
prosecutor’s closing argument here a proper comment on the
evidence — namely, the testimony of the corrections officer and the
DOC investigator that the toothbrush could be used as a weapon to
cause potentially serious injuries. See Domingo-Gomez, 125 P.3d at
1051.
¶ 35 Aside from that minor exception, we agree with Jamison that
the prosecutor erred in referring to the toothbrush as a dangerous
instrument and in attempting to elicit testimony to that effect.
Whether the toothbrush constituted a dangerous instrument as
defined in section 18-4-203(4) was, in the prosecutor’s own words,
the “crux” of the case. His repeated reference to the toothbrush as
16 a dangerous instrument, and his questions on the topic using that
phrase, were improper. See Fortson, ¶ 14, ___ P.3d at ___; see also
People v. Acosta, 2014 COA 82, ¶ 32, 338 P.3d 472, 479 (“[A] lay
witness may not testify regarding whether a particular legal
standard has or has not been met, and ‘[t]he question that elicits
the opinion testimony must be phrased to ask for a factual, rather
than a legal opinion.’” (quoting People v. Beilke, 232 P.3d 146, 152
(Colo. App. 2009))).
¶ 36 However, we do not consider the misconduct so glaringly
improper as to warrant reversal under a plain error standard. Here,
the evidence against Jamison was overwhelming. During the
interview with the DOC investigator, Jamison himself acknowledged
that the toothbrush was his and, though he maintained he used it
solely as a crafting tool, he admitted that the toothbrush could be
used to injure someone. In light of that evidence, we conclude the
prosecutor’s statement and questions do not mandate reversal
under the plain error standard.
¶ 37 As to the occasions on which the defense objected to the
prosecutor’s use of the term “dangerous instrument” — all of which
occurred during the examination of the DOC investigator — the
17 People urge us not to consider Jamison’s contentions of error on
this point because the trial court sustained the objections. The
People assert that Jamison’s “contemporaneous objection to the
comment[s] w[ere] sustained, and he requested no further relief.”
People v. Douglas, 2012 COA 57, ¶ 65, 296 P.3d 234, 249. We
agree. Additionally, on one occasion during redirect examination,
the trial court instructed the jury to disregard the investigator’s
responses to the series of improper questions. “Accordingly, we
need not consider th[ese] alleged error[s].” Id.
¶ 38 In sum, we conclude that the prosecutor’s references to the
toothbrush as a dangerous instrument do not warrant reversal.
IV. Merger
¶ 39 Jamison contends that the trial court plainly erred in entering
both the introducing contraband by making conviction and the
possession of contraband conviction because the latter is a lesser
included offense of the former. We agree and therefore vacate the
conviction for first degree possession of contraband.
18 A. Standard of Review
¶ 40 We review de novo whether merger applies to specific criminal
offenses. People v. Zweygardt, 2012 COA 119, ¶ 40, 298 P.3d 1018,
1026.
¶ 41 The parties agree that Jamison did not preserve this claim.
However, as the supreme court recently clarified, an unpreserved
double jeopardy claim is reviewable for plain error. Reyna-Abarca v.
People, 2017 CO 15, ¶ 47, 390 P.3d 816, 823.
¶ 42 Under plain error review, we reverse only if the error is
“obvious and substantial,” Hagos v. People, 2012 CO 63, ¶ 14, 288
P.3d 116, 120, and “so undermined the fundamental fairness of the
trial itself . . . as to cast serious doubt on the reliability of the
judgment of conviction,” id. (quoting People v. Miller, 113 P.3d 743,
750 (Colo. 2005)).
B. Applicable Law
1. Double Jeopardy Principles
¶ 43 Unless a statute expressly authorizes multiple punishments
for the same criminal offense, the Double Jeopardy Clauses of the
United States and Colorado Constitutions prohibit “the imposition
of multiple punishments for the same criminal conduct.” Woellhaf
19 v. People, 105 P.3d 209, 214 (Colo. 2005); see U.S. Const. amends.
V, XIV; Colo. Const. art. II, § 18. In Colorado, the General Assembly
has determined that a defendant may not be convicted of two
offenses for the same conduct if “[o]ne offense is included in the
other.” § 18-1-408(1)(a), C.R.S. 2017. A lesser offense is “included”
in a greater offense when it “is established by proof of the same or
less than all the facts required to establish the commission of the
offense charged.” § 18-1-408(5)(a).
¶ 44 In Reyna-Abarca, the supreme court addressed “how courts
should evaluate whether one offense is a lesser included offense of
another within the meaning of section 18-1-408(5)(a).” ¶ 52, 390
P.3d at 824. The court clarified that “an offense is a lesser included
offense of another offense if the 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.” Id. at ¶ 64, 390 P.3d at 826.
¶ 45 A few months after deciding Reyna-Abarca, the supreme court
again addressed the test for determining whether one offense is a
lesser included of another. The court clarified that, “[t]o the extent
that a lesser offense is statutorily defined in disjunctive terms,
20 effectively providing alternative ways of being committed, any set of
elements sufficient for commission of that lesser offense that is
necessarily established by establishing the statutory elements of a
greater offense constitutes an included offense.” People v. Rock
2017 CO 84, ¶ 16, 402 P.3d 472, 478; see also Page v. People, 2017
CO 88, ¶ 11, 402 P.3d 468, 470.
2. Possession as a Lesser Included Offense
¶ 46 Colorado courts have held in contexts similar to those
presented here that convictions for possession offenses must merge
into convictions for offenses such as distribution and
manufacturing. In Patton v. People, for example, the supreme court
concluded that the defendant’s conviction for possession of a
controlled substance merged with his conviction for manufacture of
the same substance because the former was a lesser included
offense of the latter. 35 P.3d 124, 133 (Colo. 2001). As the Patton
court noted, it could “envision no scenario in which an individual
can manufacture [a controlled substance] without also possessing
it.” Id. at 131.
¶ 47 The supreme court reached a similar conclusion in People v.
Abiodun, concluding that convictions for possession of a controlled
21 substance merged into convictions for distribution of that
substance. 111 P.3d 462, 471 (Colo. 2005). Divisions of this court
have held likewise. See, e.g., People v. Gilmore, 97 P.3d 123, 133
(Colo. App. 2003) (“We conclude that the crime of simple possession
is a lesser included offense of the crime of possession with the
intent to distribute, when, as here, both charges are premised on
possession of the same contraband.”).
¶ 48 We begin by identifying the elements of the offenses. Under
section 18-8-203(1)(b), a conviction for first degree introducing
contraband by making requires proof that (1) a person; (2) confined
in a detention facility; (3) in the State of Colorado, at or about the
date and place charged; (4) knowingly and unlawfully; (5) made any
dangerous instrument, controlled substance, marijuana or
marijuana concentrate, or alcohol. See COLJI-Crim. 8-2:05 (2017).
Under section 18-8-204.1(1), a conviction for possession of
contraband in the first degree requires proof that (1) a person; (2)
confined in a detention facility; (3) in the State of Colorado, at or
about the date and place charged; (4) knowingly; (5) obtained or had
in his possession contraband as listed in section 18-8-203(1)(a),
22 which includes a dangerous instrument. See COLJI-Crim. 8-2:09
(2017).
¶ 49 Comparing these elements, we conclude that first degree
possession of contraband is a lesser included offense of first degree
introducing contraband by making. As Jamison asserts, “[t]he
elements of these two offenses are identical except that introducing
contraband requires making a dangerous instrument while
possession requires only possessing or obtaining it.” The statute
does not defined “possess” or “obtain,” but we follow the supreme
court’s logic in Patton and conclude that making necessarily
establishes possession: “[I]t is evident that one who manufactures
[contraband] also possesses the [contraband] in the course of
manufacturing it. ‘Possession’ requires immediate and knowing
control over the [contraband]. Logic dictates that such control is
required in the production of the [contraband].” Patton, 35 P.3d at
131.
¶ 50 Thus, first degree possession of contraband “contains only
elements that are also included in the elements” of first degree
introducing contraband by making. See Reyna-Abarca, ¶ 64, 390
P.3d at 826. Because possession of contraband is a lesser included
23 offense of introduction of contraband by making, the trial court
erred in entering convictions for both offenses.
E. Plain Error
¶ 51 We now turn to whether the trial court’s error was plain. We
conclude that it was.
¶ 52 Recently, the supreme court has used two approaches to the
plain error standard as applied to double jeopardy claims. See
generally People v. Wambolt, 2018 COA 88, ¶¶ 68-70, ___ P.3d ___,
___ (contrasting the two approaches). In Reyna-Abarca, the court
held that an unpreserved double jeopardy claim is subject to plain
error review, but, in applying that standard, stated that “courts
have invariably concluded that when a defendant’s double jeopardy
rights are violated for failure to merge a lesser included offense into
a greater offense, such a violation requires a remedy.” ¶ 81, 390
P.3d at 828; see also id. at ¶ 82, 390 P.3d at 828 (noting that the
People there “presented no compelling arguments as to why any
double jeopardy errors . . . did not rise to the level of plain error”).
In contrast, in Scott v. People — decided the same day as
Reyna-Abarca — the supreme court assumed that the trial court
had erred in entering convictions for both menacing and aggravated
24 robbery-menaced victim, but held that any error was not plain
because it was not obvious. 2017 CO 16, ¶ 18, 390 P.3d 832, 835.
The court in Scott concluded that the error was not obvious because
a division of this court in People v. Sisneros, 44 Colo. App. 65, 606
P.2d 1317 (1980), “had rejected the precise argument Scott ma[de]”
and, as a result, it was not obvious error “for the trial court to have
acted consistently with that case.” Scott, ¶ 18, 390 P.3d at 835.
¶ 53 Jamison urges us to follow Reyna-Abarca, while the People
contend that Scott controls. Because the People here — like they
did in Scott — argue that the law, as it existed when Jamison was
sentenced, rejected the precise argument he advances on appeal,
our analysis more closely follows the analysis of Scott. Nonetheless,
we conclude that the error here was plain.
¶ 54 As stated in Scott, a plain error is an error that is both obvious
and substantial. ¶ 15, 390 P.3d at 836. “For an error to be . . .
obvious, the action challenged on appeal ordinarily ‘must
contravene (1) a clear statutory command; (2) a well-settled legal
principle; or (3) Colorado case law.’” Id. at ¶ 16, 390 P.3d at 835
(quoting People v. Pollard, 2013 COA 31M, ¶ 40, 307 P.3d 1124,
1133).
25 ¶ 55 We conclude that the error here was obvious because it ran
afoul of Colorado case law. The People contend that the error could
not have been obvious because “no Colorado case law has
suggested that possession of contraband is a lesser included offense
of introduction of contraband.” We disagree. Patton and Abiodun,
along with decisions from our court, have held that possession is a
lesser included offense of manufacturing. See, e.g., Abiodun, 111
P.3d at 468 (“In Patton we considered it clear that manufacturing a
controlled substance cannot be committed without also possessing
it, however briefly.”). Those cases were decided well before Jamison
was sentenced in November 2015; though they dealt with different
statutory provisions than the ones at issue here, in our view they
provided clear authority to support merging the convictions.
¶ 56 Nevertheless, the People contend that People v. Etchells, 646
P.2d 950 (Colo. App. 1982), dictates that the error here was not
obvious because it was “the sole case on point” and constituted
contrary authority. The Etchells division considered whether
possession of contraband — specifically, marijuana — is a lesser
included offense of introducing contraband in the first degree. 646
P.2d at 951. The division concluded that “[b]ecause proof of
26 possession is not an essential element to the crime of introducing
contraband, the crime of possession of cannabis cannot be a lesser
included offense thereof. It is merely a separate and different
crime.” Id.
¶ 57 However, it is not clear that Etchells actually is on point
because the division there did not specify whether the defendant
had been charged with introducing contraband by making under
section 18-8-203(1)(b), or introducing under section 18-8-203(1)(a).
See generally Etchells, 646 P.2d 950. Because the defendant in
Etchells was charged with introducing marijuana, in our view it is
more likely that she was charged under subsection 203(1)(a) given
the apparent difficulty of making (growing) marijuana while
confined, as would be required for a charge under subsection
203(1)(b). Given that the decision does not specify under which
provision the defendant was charged, the trial court here could not
rely on it as directly on point authority.
¶ 58 If we assume the defendant in Etchells was charged under
subsection 203(1)(a), the case is not on point. In contrast to
introducing by making under subsection 203(1)(b), introducing or
attempting to introduce contraband under subsection 203(1)(a)
27 could potentially be committed without a defendant possessing the
contraband. By way of example, a person could commit
introducing contraband under subsection 203(1)(a) without also
committing possession of contraband by asking someone to mail
contraband to a detention facility. See, e.g., People v. Maestas, 199
P.3d 713, 715 (Colo. 2009) (noting that the defendant was charged
under section 18-8-203(1)(a) when, “while [he] was in custody
awaiting his trial . . ., his sister mailed him a package . . .
containing illegal narcotics”).
¶ 59 However, even if we assume Etchells is directly on point, in our
view the more recent supreme court authority conflicting with that
decision controls. The decisions in Patton and Abiodun made the
trial court’s error here plain.
¶ 60 The People further assert that the error here was not plain
because the supreme court has refined the test for determining
whether one offense is a lesser included of another since Jamison
was sentenced. Although the supreme court had not decided the
line of cases beginning with Reyna-Abarca when Jamison was
sentenced, we do not consider those cases dispositive as to whether
the error here was plain. The supreme court decided Patton and
28 Abiodun well before it clarified the test under section 18-1-408(5)(a)
in Reyna-Abarca. Those earlier cases provide clear authority that a
conviction for possession of contraband would merge into a
conviction for manufacturing contraband, and the Reyna-Abarca
line of cases does not undermine, much less mention, Patton or
Abiodun. See generally Reyna-Abarca, ¶¶ 53-58, 390 P.3d at 824-
26 (reviewing several prior decisions concerning statutory elements
test, but not discussing Patton or Abiodun). Thus, under Colorado
case law available to the trial court at the time of Jamison’s
sentencing, first degree possession of contraband was a lesser
included offense of first degree introducing contraband by making.
¶ 61 We further conclude that the error here was substantial.
“[T]he prohibition against double jeopardy is a substantial right
guaranteed by the United States and Colorado Constitutions.”
People v. Friend, 2014 COA 123M, ¶ 75, ___ P.3d ___, ___ (cert.
granted in part Feb. 8, 2016). The trial court’s error offended that
substantial right.
¶ 62 Thus, we vacate the conviction for possession of contraband in
the first degree and remand to the trial court to correct the
mittimus.
29 V. Conclusion
¶ 63 Accordingly, we affirm the judgment of conviction for
introducing contraband in the first degree, vacate the conviction for
possession of contraband in the first degree, and remand for the
trial court to correct the mittimus.
JUDGE WELLING and JUSTICE MARTINEZ concur.