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

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,

(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

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,

,

; see also People v. Rubio,

(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,

. We will follow the

4 Wartena division and apply that standard of review here. See

People v. Nozolino,

,

(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,

,

. 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,

.

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,

, 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,

, ¶ 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.

A. Additional Facts

¶ 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.”

B. Standard of Review

¶ 28 We engage in a two-step analysis in reviewing claims of

prosecutorial misconduct. Wend v. People,

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances.

Second, we decide whether, under the proper standard of review,

any misconduct warrants reversal.

¶ 29 We review conduct to which a defendant did not object for

plain error.

. Under this standard, reversal is warranted

only when prosecutorial misconduct is “flagrantly, glaringly, or

tremendously improper,” Domingo-Gomez v. People,

(Colo. 2005) (quoting People v. Avila,

(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,”

¶ 30 We review conduct to which a defendant raised a

contemporaneous objection at trial for harmless error. Wend,

. Prosecutorial misconduct is harmless if it did not

14 “substantially influence the verdict or adversely affect the fairness

of the proceedings.” People v. Whitman,

(Colo. App. 2007).

C. Applicable Law

¶ 31 “[P]rosecutorial remarks that evidence personal opinion,

personal knowledge, or inflame the passions of the jury are

improper.” Domingo-Gomez,

. 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,

.

¶ 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,

(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,

.

¶ 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,

,

(“[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,

(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,

,

. 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].”

¶ 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,

,

.

¶ 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,

,

.

¶ 42 Under plain error review, we reverse only if the error is

“obvious and substantial,” Hagos v. People,

, ¶ 14,

, 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,

(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,

(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,

. 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,

.

¶ 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

,

; see also Page v. People,

,

.

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.

(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.”

.

¶ 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.

(Colo. 2005). Divisions of this court

have held likewise. See, e.g., People v. Gilmore,

(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.”).

D. Analysis

¶ 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,

.

¶ 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,

. 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,

, ___ 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,

; see also id. at ¶ 82,

(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.

,

.

The court in Scott concluded that the error was not obvious because

a division of this court in People v. Sisneros,

,

(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,

, ¶ 40,

).

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,

(“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,

(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.

. 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.”

¶ 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,

. 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,

(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,

, ¶ 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.

30