2018 COA 121
Colo. Ct. App.2018Background
- Defendant Kyle Jamison, a DOC inmate, was found with an altered toothbrush in his cell: one end sharpened and a razor blade affixed.
- Jamison admitted to using the device for craft work (cutting fabric/paper) but also acknowledged it could injure someone.
- He was charged with and convicted by jury of: introducing contraband in the first degree (making a dangerous instrument while confined) and possessing contraband in the first degree.
- Trial court declined defense-tendered instructions on two lesser nonincluded offenses (second-degree introducing and possessing contraband).
- The prosecutor repeatedly called the toothbrush a "dangerous instrument," eliciting opinion testimony over some defense objections; the court sustained some objections and instructed the jury to disregard certain testimony.
- On appeal the court affirmed the introducing conviction, rejected reversal for prosecutorial misconduct, but concluded the possession conviction must merge and be vacated as a lesser included offense of the introducing-by-making charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by refusing lesser nonincluded-offense instructions (second-degree introducing/possessing) | No rational basis for those instructions; evidence did not show toothbrush could cut fence/wire, dig, pry, or file | Evidence (cellmate testimony and Jamison’s statement) provided a rational basis to convict of second-degree offenses | Affirmed trial court: no abuse of discretion; evidence did not support capability to cut fence/wire, etc. |
| Whether prosecutor’s repeated references to the toothbrush as a "dangerous instrument" and elicitation of opinion testimony was reversible prosecutorial misconduct | Remarks were proper comments on evidence and reasonable inferences | Statements were improper opinion/ legal characterization and prejudicial | Court found much of prosecutor’s conduct improper but not plain error or prejudicial given overwhelming evidence; convictions stand |
| Whether convictions for introducing contraband (by making) and possessing contraband merge (double jeopardy) | People argued contrary authority (Etchells) or that law was unsettled, so error was not obvious | Jamison argued possession is lesser included because making necessarily establishes possession | Conviction for possession vacated: possession is a lesser included offense of introducing-by-making; error was plain and substantial; remand to correct mittimus |
Key Cases Cited
- People v. Patton, 35 P.3d 124 (Colo. 2001) (manufacturing necessarily establishes possession; possession merges into manufacturing)
- People v. Abiodun, 111 P.3d 462 (Colo. 2005) (possession merges into distribution; possession is lesser included)
- Reyna-Abarca v. People, 390 P.3d 816 (Colo. 2017) (elements test for lesser included offenses under § 18-1-408 clarified)
- Scott v. People, 390 P.3d 832 (Colo. 2017) (plain-error analysis for unpreserved double jeopardy claims; whether error was obvious given existing precedent)
- People v. Etchells, 646 P.2d 950 (Colo. App. 1982) (earlier division decision holding possession not lesser included of introducing; court here deems it distinguishable or superseded by later supreme court authority)