Lincoln County District Court No. 15CR13 Honorable Jeffrey K.
Cynthia H. Coffman, Attorney General, Brittany L. Limes,
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Meredith K. Rose,
Deputy State Public Defender, Denver, Colorado, for
TAUBMAN Welling and Martinez [*] , JJ., concur
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.
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.
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
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
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.
the trial court rejected the defense-tendered instructions.
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").
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).
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." §
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 §
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
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. 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." §