     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.

                           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, 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).

                            C. Applicable Law

¶ 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.”).

                                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, 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.




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