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People v. Jamison

Court of Appeals of Colorado, First Division

August 23, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kyle Lee Jamison, Defendant-Appellant.

          Lincoln County District Court No. 15CR13 Honorable Jeffrey K. Holmes, Judge.

          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

          JUDGE TAUBMAN Welling and Martinez [*] , JJ., concur

          OPINION

          TAUBMAN JUDGE.

         ¶ 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. 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 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 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 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 § 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 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, 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." § ...


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