August 18, 2019

Colorado Court of Appeals: Convictions for Introducing and Possessing Contraband Should Have Merged at Sentencing

The Colorado Court of Appeals issued its opinion in People v. Jamison on Thursday, August 23, 2018.

Criminal Law—Jury Instructions—Lesser Nonincluded Offense—Evidence—Prosecutorial Misconduct—Merger—Double Jeopardy—Possessing Contraband—Introducing Contraband by Making.

Jamison was an inmate at a Department of Corrections 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. Jamison was found guilty of introducing contraband in the first degree and possessing contraband in the first degree.

On appeal, Jamison contended that the trial court erred in refusing to instruct the jury on the two lesser nonincluded offenses, second degree introducing contraband and second degree possession of contraband. However, there was no evidence that the altered toothbrush could cut fence or wire, which was needed to convict Jamison of either second degree offense. Thus, the trial court did not abuse its discretion in rejecting the defense-tendered instructions on the lesser nonincluded offenses.

Jamison also argued 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. Although the prosecutor’s pervasive references to the toothbrush as a dangerous instrument were largely improper, there was no basis for reversal because the evidence against Jamison was overwhelming.

Finally, Jamison contended that his convictions for introducing contraband in the first degree and possessing contraband in the first degree should have merged at sentencing. First degree possession of contraband is a lesser included offense of first degree introducing contraband by making, and the convictions should have merged. The trial court erred in entering convictions for both offenses.

The conviction for introducing contraband in the first degree was affirmed. The conviction for possessing contraband in the first degree was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

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