author: Opinion by JUDGE MÁRQUEZ JUDGE DAILEY, concurring in part and dissenting in part.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Steven KESSLER, Defendant-Appellant.
    Court of Appeals No. 14CA1390
    Colorado Court of Appeals, Division II.
    Announced May 3, 2018 Rehearing Denied June 7, 2018
    Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE MÁRQUEZ

¶ 1 Defendant, Daniel Steven Kessler, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of a controlled substance (cocaine), driving under the influence, possessing an open container of alcohol in a motor vehicle, operating a motor vehicle without a license, and speeding. We affirm.

I. Background

¶ 2 Kessler, who lived in Fraser, borrowed his father's car to drive to Denver to see his girlfriend. On his return, he was stopped by police between Winter Park and Fraser for driving sixty-seven miles per hour in a fifty-five mile per hour zone. Upon approaching the car with a flashlight, the officer spotted a half-empty 375 milliliter bottle of schnapps on the floor behind the passenger's seat. The officer asked Kessler for his license, registration, and proof of insurance multiple times before Kessler responded by presenting only the registration and proof of insurance; Kessler admitted that he did not have a valid driver's license.

¶ 3 Noticing that Kessler had watery, bloodshot eyes, slurred speech, and an odor of alcohol on his breath, the officer asked him to step out of the car. Kessler needed to use the car door for support to get out of the car. When the officer asked if he had been drinking, Kessler initially told the officer that he had not; eventually, though, Kessler told him that he had drunk from the bottle of schnapps. The officer then administered a roadside sobriety examination of Kessler. After Kessler performed most of the maneuvers unsatisfactorily, the officer administered a preliminary breath test (PBT), which registered .154 g/210L, before arresting him for driving under the influence (DUI) and placing him in the back of a police car.

¶ 4 Two other officers searched the vehicle for further evidence of alcohol consumption. Upon lifting the armrest over the center console in the front seat, they discovered a bag containing a white powdery substance that they suspected was, and which turned out to be, cocaine.

¶ 5 Approximately three hours after Kessler's arrest, a deputy sheriff at the Grand County Jail administered a breath test as Kessler had requested. The test results showed that he had a blood alcohol content of 0.097g/210L.

¶ 6 At trial, Kessler testified that although he had been drinking, he was not drunk, and that the cocaine found in his car did not belong to him. It could have been put there, he posited, by others (i.e., his girlfriend and a panhandler) who had been in the car earlier that day.

¶ 7 The jury found Kessler guilty as charged.

II. Sufficiency of Evidence: Possession of a Controlled Substance

¶ 8 Kessler contends that the evidence was insufficient to convict him of possessing a controlled substance (cocaine). We disagree.

¶ 9 As an initial matter, we reject the People's position that this issue was not properly preserved for appeal. Although Kessler did not offer a precise argument, he did move for a judgment of acquittal on this and all the other counts. In response, the prosecution addressed each count in turn, including possessing a controlled substance. The trial court then denied Kessler's motion after, like the prosecution, addressing each count and its specific evidence. Because the trial court specifically addressed the count that Kessler challenges on appeal, the issue is properly preserved. People v. McFee , 2016 COA 97, ¶ 31, 412 P.3d 848 ("Where, despite imprecision in the objection, the trial court actually rules on the claim raised on appeal, and makes findings of fact and conclusions of law, the claim is sufficiently preserved.").

¶ 10 Turning to the merits, we note Kessler was convicted under section 18-18-403.5(1), C.R.S. 2017, which provides, "it is unlawful for a person knowingly to possess a controlled substance." Here, Kessler asserts that there was insufficient evidence from which a jury could find that he possessed, or knowingly possessed, the cocaine because he borrowed the car from his father, he was not in exclusive control of the car on the date in question, and he denied knowing the cocaine was in the car. In support of his assertion, he advances two contentions-namely, that (1) where a person is not in exclusive control of the area in which drugs are found, the inference of possession may not be drawn unless statements or other circumstances buttress that inference; and (2) the mere presence of a drug does not, in and of itself, prove knowing possession of it, see People v. Poe , 2012 COA 166, ¶ 16, 316 P.3d 13.

¶ 11 A flaw in Kessler's arguments is their premises-that is, that he was not in exclusive possession of the car (because others had ridden in it that day) and that nothing besides the mere presence of the cocaine was presented to show he knowingly possessed it. His premises assume that the jury believed his version of events. Such an assumption is given no effect, however, in assessing a sufficiency of evidence issue.

When assessing the sufficiency of the evidence supporting a conviction, we review the record de novo to determine whether the evidence, viewed in the light most favorable to the prosecution, was both substantial and sufficient to support the conclusion by a reasonable mind that the defendant was guilty beyond a reasonable doubt.

People v. Griego , 2018 CO 5, ¶ 24, 409 P.3d 338.

¶ 12 In analyzing the sufficiency of the evidence, we recognize that (1) it is for the fact finder to determine the difficult questions of witness credibility and the weight to be given to conflicting items of evidence, see People v. Gibson , 203 P.3d 571, 575 (Colo. App. 2008) ; (2) a fact finder is not required to accept or reject a witness's testimony in its entirety; it may believe all, part, or none of a witness's testimony, Gordon v. Benson , 925 P.2d 775, 778-79 (Colo. 1996) ; (3) an actor's state of mind is normally not subject to direct proof and must be inferred from his or her actions and the circumstances surrounding the occurrence, People v. Phillips , 219 P.3d 798, 800 (Colo. App. 2009) ; (4) the prosecution must be given the benefit of every inference that may fairly be drawn from the evidence, People v. Heywood , 2014 COA 99, ¶ 1, 357 P.3d 201 ; (5) "[i]f there is evidence upon which one may reasonably infer an element of the crime, the evidence is sufficient to sustain that element," People v. Chase , 2013 COA 27, ¶ 50, 411 P.3d 740 ; and (6) "[w]here reasonable minds could differ, the evidence is sufficient to sustain a conviction," People v. Bondurant , 2012 COA 50, ¶ 58, 296 P.3d 200 (quoting People v. Carlson , 72 P.3d 411, 416 (Colo. App. 2003) ); see People v. Arzabala , 2012 COA 99, ¶ 13, 317 P.3d 1196 ("An appellate court is not permitted to act as a 'thirteenth juror' and set aside a verdict because it might have drawn a different conclusion had it been the trier of fact.").

¶ 13 Initially, we note that the possibility someone else was in the car earlier that day does not change the fact that Kessler was in exclusive possession of the vehicle when it was stopped and searched, making him subject to the inferences that he knowingly possessed the cocaine. See People v. Baca , 109 P.3d 1005, 1007 (Colo. App. 2004) ("[K]nowledge [of drugs] can be inferred from the fact that the defendant is the driver and sole occupant of a vehicle, irrespective of whether he is also the vehicle's owner."); see also Goliday v. State , 708 N.E.2d 4, 6 (Ind. 1999) (holding that where the defendant was the only person in a borrowed car when stopped, his exclusive possession of the car was sufficient to raise a reasonable inference of knowledge of the presence of contraband). Moreover, as noted above, the jury was not bound to accept Kessler's testimony that others had been in the car that day-yet another reason why, for sufficiency of evidence purposes, Kessler could be considered to have been in exclusive possession of the car.

¶ 14 Furthermore, one officer testified that the cocaine was, upon the simple movement of lifting the armrest, plainly visible-and not covered by anything-in the console. This testimony, in conjunction with the cocaine's location just inches from where Kessler sat on and off for ten hours that day, and Kessler's testimony that, to his knowledge, no one else had interacted with the console, amply supported the inference that Kessler knowingly possessed the cocaine. See People v. Warner , 251 P.3d 556, 564 (Colo. App. 2010) ("A conviction for possession of a controlled substance may be predicated on circumstantial evidence.").

III. Admission of Evidence Concerning the Cocaine Found in the Car

¶ 15 On appeal, Kessler contends that the trial court should have suppressed evidence related to the recovery of cocaine from his car because the police lacked sufficient grounds to search the car once they seized the half-empty bottle of schnapps. We disagree.

¶ 16 A district court's ruling on a motion to suppress evidence presents a mixed question of law and fact. People v. Glick , 250 P.3d 578, 582 (Colo. 2011) ; People v. Rabes , 258 P.3d 937, 940 (Colo. App. 2010). We defer to the court's findings of fact so long as they are supported by competent evidence in the record, but we review the court's legal conclusions de novo. Glick , 250 P.3d at 582.

¶ 17 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. People v. D.F. , 933 P.2d 9, 11-12 (Colo. 1997). Warrantless searches are presumptively invalid unless justified by an established exception to the warrant requirement. People v. Prescott , 205 P.3d 416, 419 (Colo. App. 2008). One such exception is the search of a vehicle incident to a lawful arrest. People v. Coates , 266 P.3d 397 (Colo. 2011).

¶ 18 In Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the United States Supreme Court held that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Id. at 351, 129 S.Ct. 1710.

¶ 19 Here, because Kessler had been removed from the car and taken into custody before the search occurred, we are concerned only with the second Gant situation-that is, whether it was reasonable for the police to believe that Kessler's vehicle contained evidence of the offense of arrest, DUI.

¶ 20 Many state and federal courts hold "either 'that the "nature of the charge" is determinative of whether there exists a reasonable basis to search for evidence' or that reasonableness of belief should be determined 'based upon common sense factors and the totality of the circumstances.' " Rebecca A. Fiss, When "It Depends" Isn't Good Enough: The Problems Caused by the Supreme Court of North Carolina's Decision in State v. Mbacke, 91 N.C. L. Rev. 1404, 1435-36 (2013) (footnote omitted) (first quoting Brown v. State , 24 So.3d 671, 678 (Fla. Dist. Ct. App. 2009) ; then quoting United States v. Reagan , 713 F.Supp.2d 724, 728 (E.D. Tenn. 2010) ); see State v. Eversole , No. 15-17-03, 2017 WL 5127369, at *4 (Ohio Ct. App. Nov. 6, 2017) ("Two primary approaches to Gant 's reason-to-believe language have developed-the 'categorical' approach and the 'reasonableness' approach.").

¶ 21 Some courts, using the categorical approach, have held that an arrest for DUI in and of itself supplies the reason for a search incident to arrest under Gant . See, e.g. , People v. Nottoli , 199 Cal.App.4th 531, 130 Cal.Rptr.3d 884, 903 (2011) ("[T]he search of the Acura incident to Reid's arrest for being under the influence was lawful under Gant based on the nature of that offense."); State v. Cantrell , 149 Idaho 247, 233 P.3d 178, 185 (2010) ("In this case, Cantrell was arrested for DUI, and the DUI supplied the basis for the search.").

¶ 22 Other courts have rejected the categorical approach under Gant in DUI situations, looking instead to the totality of the circumstances to determine if the officer had a specific, reasonable, and articulable suspicion apart from the mere nature of the offense to justify a search of a vehicle incident to the arrest. See, e.g. , United States v. Taylor , 49 A.3d 818, 824 (D.C. 2012) ; Taylor v. State , 448 Md. 242, 137 A.3d 1029, 1033-34 (2016).

¶ 23 In People v. Chamberlain , 229 P.3d 1054 (Colo. 2010), the supreme court eschewed use of a categorical (or nature of offense) approach to determining the validity of a search of a car incident to arrest:

The nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, but a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant .

Id. at 1057.

¶ 24 Consequently, "[u]nder the evidence-gathering rationale set forth in [ Gant ], officers may search the passenger compartment of a vehicle where the particular circumstances give rise to a reasonable articulable suspicion that the vehicle might contain evidence of the crime for which they had probable cause to arrest." People v. Crum , 2013 CO 66, ¶ 2, 312 P.3d 186 (emphasis added) (citation omitted).

¶ 25 The reasonable suspicion standard requires "considerably less than proof ... by a preponderance of the evidence and is less demanding even than the 'fair probability' standard for probable cause." People v. Polander , 41 P.3d 698, 703 (Colo. 2001). It is satisfied if the police have specific and articulable facts, greater than a mere hunch, to support their belief that evidence of the crime for which the defendant was arrested might be in the car. See People v. Huynh , 98 P.3d 907, 912 (Colo. App. 2004) (discussing "reasonable suspicion" in the investigatory stop context); see also People v. McCarty , 229 P.3d 1041, 1046 (Colo. 2010) (recognizing that, in the search of a vehicle context, "reasonable suspicion" must be based on some minimal level of objective suspicion, not merely a hunch or intuition, that evidence might be found in the arrestee's vehicle).

¶ 26 "In considering whether reasonable suspicion exists, the court looks at the totality of the circumstances, the specific and articulable facts known to the officer at the time of the encounter, and the rational inferences to be drawn from those facts," People v.Garcia , 251 P.3d 1152, 1158 (Colo. App. 2010), in light of the officer's special training and experience, People v. Ortega , 34 P.3d 986, 994 (Colo. 2001) ; see United States v. Guerrero , 472 F.3d 784, 787 (10th Cir. 2007) ("[O]fficers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' " (quoting United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ) ).

¶ 27 Here, the trial court determined that the evidence of cocaine was admissible because of the following:

• The officer had probable cause to arrest Kessler for driving under the influence based on his failure to adequately perform the roadside sobriety tests, his bloodshot eyes, the odor of alcohol on his breath, and the PBT results.
• Kessler's initial untruthfulness with the officer about whether or not he had been drinking made it "reasonably likely that they could find additional evidence [to support] a criminal investigation in the vehicle."
• One of the two officers who searched the vehicle stated, based on his training and experience, it was "more common than not" to find bottles of alcohol in a vehicle of someone arrested for driving under the influence.
• The first officer had seen a half-empty bottle of schnapps on the floor behind the passenger seat as he approached the vehicle.
• Kessler's intoxication, plus the officer's observation of the opened bottle of schnapps, justified the officers' search of the car for more bottles of alcohol.

¶ 28 We agree that the search that uncovered the cocaine was justified. By virtue of the first four items identified above, the police had more than ample grounds to reasonably suspect that the vehicle would contain evidence (i.e., alcohol) related to the offense for which Kessler was arrested. And they found that evidence-alcohol, in the form of the half-empty bottle of schnapps-in the car. The question, though, is did the officers' reasonable suspicion that the car contained alcohol evaporate once the officers found some alcohol? In our view, it did not.

¶ 29 Our conclusion in this respect is supported by the decision of the Wisconsin Court of Appeals in State v. Billips , 337 Wis.2d 734, 807 N.W.2d 32, 2011 WL 4578555 (Wis. Ct. App. 2011) (unpublished table decision), a case that, in all material respects, parallels the circumstances of the present case. In Billips , the defendant was stopped for speeding. Upon approaching the defendant's vehicle, the officer saw what looked to be an open bottle of alcohol inside the vehicle. He removed the opened bottle from the car, had the defendant perform roadside sobriety tests, arrested him for operating a vehicle while intoxicated (OWI), and searched the car for any other open intoxicants. The officer found a marijuana cigar end on the center console of the car and more marijuana inside a purse on the backseat of the car, and the defendant was charged with possession of tetrahydrocannabinols (THC). Unlike in our case, the trial court suppressed the evidence of marijuana found in the defendant's vehicle. The State successfully appealed that ruling, however.

¶ 30 In concluding that the search of the vehicle for more open containers of alcohol was proper, the Wisconsin appellate court rejected an argument identical to the one made by Kessler here-that is, that the police had no ground to search the car further once they seized the open bottle of alcohol therefrom:

[The defendant] contends that at the point of her arrest, "it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle.... [I]f [the defendant] left intoxicants in plain view in her vehicle, it is not reasonable to assume there were others stashed away out of the deputy's sight." In other words, [the defendant] argues that because [the officer] had already removed some evidence from her vehicle, it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle. This same argument was considered by this court in State v. Smiter, 2011 WI App 15, ¶ 16, 331 Wis. 2d 431, 793 N.W.2d 920, and rejected as "nonsensical." There, the court observed, " Gant expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found." Smiter , 331 Wis. 2d 431, ¶ 16, 793 N.W.2d 920.
Here, it was reasonable for [the officer] to believe that further evidence related to [the defendant's] OWI arrest might be found in the vehicle.

Id. at *2.

¶ 31 Persuaded by this analysis, we conclude that the search of the car and discovery of the cocaine were proper.

IV. Admissibility of, and the Instruction on, the Breath Test Results

¶ 32 In two related arguments, Kessler contends that the trial court erred in (1) not suppressing the results of a breathalyzer test performed outside the two-hour time period prescribed in section 42-4-1301.1, C.R.S. 2017; and (2) accordingly, instructing the jury that the delay in testing went to the weight of the evidence. We conclude that Kessler has waived these issues.

¶ 33 Kessler did not ask the trial court to suppress the results of the breath test or otherwise argue to the trial court that they were inadmissible. He also did not object to the instruction on the ground asserted on appeal-namely, that a delay in testing rendered the test results inadmissible.

¶ 34 So, Kessler has presented a new, or additional, argument on appeal. Sometimes, we review a new or additional argument raised for the first time on appeal for plain error. People v. Mares , 263 P.3d 699, 702 (Colo. App. 2011) ("When, as here, a defendant fails to object or asserts on appeal a ground different from the ground asserted in the trial court, we review for plain error.").

¶ 35 However, in this case, the new ground (i.e., that the delay in conducting the breath test rendered its results inadmissible) for both of his appellate arguments was explicitly disavowed by defense counsel in the trial court. In prefacing the objection he made to the instruction, see supra note 6, defense counsel took the position that the tests were admissible and that the only question was the weight to be given them: "I do not disagree with the Court in terms of the admission of the test.... So the test was admitted. We can certainly argue the weight."

¶ 36 By agreeing that the test results were admissible and that the delay in conducting the tests affected only their weight, defense counsel waived Kessler's right to argue, as he does here, precisely the opposite. See, e.g. , United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (stating that a waiver occurs when a defendant specifically removes claims from the trial court's consideration by intentionally relinquishing or abandoning a known right); United States v. Walton , 255 F.3d 437, 441 (7th Cir. 2001) (a "waived" issue is the result of an "intentional choice not to assert [a] right" (quoting United States v. Cooper , 243 F.3d 411, 416 (7th Cir. 2001) ) ).

¶ 37 Recently, our supreme court held that defense counsel's general acquiescence to the jury instructions did not waive the defendant's appellate claim that the elemental instruction effected a constructive amendment of the charge, at least in the absence of other indications that counsel was aware of the defect in the elemental instruction. See People v. Rediger , 2018 CO 32, ¶¶ 41-47. Here, however, an elemental instruction is not at issue, and defense counsel did more than generally acquiesce or fail to object. Defense counsel explicitly agreed that the specific evidence at issue was admissible. So, Kessler, through his counsel, intentionally waived the particular point raised on appeal.

¶ 38 Because defense counsel explicitly waived the very claim Kessler makes on appeal, there is no issue of error for us to review. See People v. Abeyta , 923 P.2d 318, 321 (Colo. App. 1996) (stating that where a defendant has waived a right, there is no error or omission by the court, and thus nothing for an appellate court to review), superseded by rule , Crim. P. 35(c), on other grounds as recognized in People v. Roy , 252 P.3d 24, 27 (Colo. App. 2010) ; see also Olano , 507 U.S. at 733, 113 S.Ct. 1770 (distinguishing between a "waived" and a "forfeited" claim of error, and noting that a "waived" claim of error presents nothing for an appellate court to review); Walton , 255 F.3d at 441 ("[A] waived issue is unreviewable because a valid waiver leaves no error to correct and extinguishes all appellate review of the issue.").

V. Questioning Kessler About An Officer's Veracity

¶ 39 At trial, the amount of alcohol in the bottle of schnapps when the officer discovered it was contested: the officer said it was half full, while Kessler testified it was two-thirds full. During cross-examination, the prosecution asked Kessler if the officer "made up" the amount of schnapps in the bottle, to which Kessler responded, "Yeah. I didn't say that to him."

¶ 40 On appeal, Kessler contends that the prosecution's question was improper under Liggett v. People , 135 P.3d 725 (2006), in which the supreme court held that it is improper to ask a witness to comment on the veracity of another witness. Significantly, however, defense counsel lodged no objection to the question; consequently, reversal is not warranted in the absence of a showing of plain error. People v. Ujaama , 2012 COA 36, ¶ 38, 302 P.3d 296.

¶ 41 Plain error "provide[s] a basis for relief only on rare occasions," in part because "it is difficult to 'fault a trial court for failing to rule on an issue that had not been presented to it.' " Id. at ¶ 40 (quoting United States v. Simmonds , 931 F.2d 685, 688 (10th Cir. 1991) ). Relief under the plain error doctrine is limited to error that is "obvious and substantial." Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116.

¶ 42 Under Liggett , the prosecutor's question (i.e., asking Kessler if the officer "made up" the amount of schnapps in the bottle) would ordinarily be improper because it was, in essence, another way of asking Kessler whether the officer was "lying." See Liggett , 135 P.3d at 733 (holding questions asking one witness whether another witness was "mistaken" are improper).

¶ 43 But the People argue those questions were not improper in this case because Kessler had opened the door to such questioning when he initiated the exchange by stating that the officer "exaggerated" when he testified that Kessler admitted to having drunk half of the bottle. See, e.g. , United States v. Schmitz , 634 F.3d 1247, 1270 (11th Cir. 2011) (The court "recogniz[ed] that were-they-lying questions might be proper 'if a defendant opened the door by testifying on direct that another witness was lying.' " (quoting United States v. Harris , 471 F.3d 507, 512 (3d Cir. 2006) ) ).

¶ 44 The problem with the People's argument, however, is that the testimony of Kessler on which they rely was not elicited by him on direct examination, but, rather, by them earlier in their cross-examination of him. Because a party cannot open its own door to create an opportunity for the admission of otherwise inadmissible evidence, see State v. Prine , 287 Kan. 713, 200 P.3d 1, 11 (2009), we conclude that, had a proper objection been made, the trial court would have erred in allowing the prosecutor to ask Kessler the referenced question.

¶ 45 But "[t]o qualify as plain error, an error must generally be so obvious that a trial judge should be able to avoid it without the benefit of an objection." Scott v. People , 2017 CO 16, ¶ 16, 390 P.3d 832. For an error to be "this obvious," it must ordinarily contravene (1) a clear statutory command; (2) a well-settled legal principle; or (3) Colorado case law. Id.

¶ 46 Here, we have neither a clear statutory command nor on-point Colorado case authority. We do, however, have a "well-settled legal principle"-namely, that witnesses should not be asked to comment on the veracity of other witnesses-as well as a twelve-year-old case holding that questions closely analogous to the question asked of Kessler (i.e., whether the officer "made up" the amount he said was in the bottle of schnapps) are improper. See Liggett , 135 P.3d at 733 (holding questions about whether a witness was "mistaken" and whether a witness was lying are improper). Because the case law establishing and applying the legal principle in closely analogous circumstances is well settled, we conclude that the error in allowing those two questions should have been "obvious" to the trial court.

¶ 47 However, to obtain relief under the plain error rule, it is not enough that "obvious" error occurred when the prosecutor was allowed to ask Kessler whether the officer "made up" something. The error must also be "substantial." Hagos , ¶ 14.

¶ 48 To qualify as "substantial" in this context, an error must be "seriously prejudicial"-that is, it must have so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the defendant's conviction. Ujaama , ¶ 43 ; see also Hagos , ¶ 14. For the following reasons, we conclude that the "obvious" error occasioned by the prosecutor's asking Kessler whether the officer "made up" the amount of alcohol was not "substantial."

¶ 49 First, the question the prosecutor asked was not only a small part of the case, it was also a small part of Kessler's twenty pages of testimony. Cf. People v. Herr , 868 P.2d 1121, 1125 (Colo. App. 1993) (prosecutor's "improper comments were isolated ones made during a very lengthy summation").

¶ 50 Second, similar to Liggett -where the court found no plain error-an assertion that the officer "made up" things was less damaging than a question that would have explicitly asserted that the officer was lying. Liggett , 135 P.3d at 735.

¶ 51 Third, the evidence against Kessler was strong. The prosecution presented (1) the officer's testimony regarding Kessler's appearance and unsatisfactory performance in the roadside maneuvers; (2) Kessler's blood alcohol level results from the breathalyzer test; and (3) Kessler's own admission that he had drunk from the bottle of schnapps. See People v. Cordova , 293 P.3d 114, 122 (Colo. App. 2011) (because "the evidence of [the] defendant's guilt was strong," prosecutor's misconduct was not plain error).

¶ 52 In light of these circumstances, we conclude that the prosecutor's question did not cast serious doubt on the reliability of Kessler's conviction. Consequently, the error was not "substantial" and does not warrant reversal under the plain error rule.

VI. Conclusion

¶ 53 The judgment of conviction is affirmed.

JUDGE NAVARRO concurs.

JUDGE DAILEY concurs in part and dissents in part.

JUDGE DAILEY, concurring in part and dissenting in part.

¶ 54 I agree with all but Part III of the majority's opinion. Unlike the majority, I do not find persuasive the decision in State v. Billips , 337 Wis.2d 734, 807 N.W.2d 32, 2011 WL 4578555 (Wis. Ct. App. 2011) (unpublished table decision). To the contrary, in my view the police were required to have a factual basis upon which to support an articulable, reasonable suspicion to believe that the vehicle might contain one or more bottles of alcohol in addition to the one initially observed in and recovered from the car. Accepting that Kessler was intoxicated, there is no reason evident in the record to believe that he likely consumed more than the observed, half-empty bottle of schnapps.

¶ 55 The People argue, however, that the officers' experience and training supported the search for more bottles of alcohol. But the officers did not give any details about their training or experience with DUI arrests or provide any particularized reason based on that experience or training to believe that Kessler's vehicle might contain evidence of even more consumed alcohol than the already recovered half-empty bottle of schnapps. In similar circumstances, the District of Columbia Court of Appeals said:

As we have explained, [the officer's] experience must be considered as part of the totality of the circumstances. In this case, however, "we know too little about [the officer's] experience," Duckett v. United States , 886 A.2d 548, 552 (D.C. 2005), to place much weight upon his conclusory statement that "typically someone who is driving under the influence also has an open container of alcohol or multiple containers of alcohol in their vehicle." Without a great deal more detail, we have no basis for determining whether such behavior is indeed "typical" of someone driving under the influence. Moreover, relying uncritically on that experience would amount to endorsing a per se rule governing DUI cases . See id. at 553 ("Whatever [the officer's] experience in traffic stops of others, we think that the necessary particularized and objective basis for suspecting [the defendant] was absent here.").

United States v. Taylor , 49 A.3d 818, 827 (D.C. 2012) (emphasis added); see United States v. Reagan , 713 F.Supp.2d 724, 732 (E.D. Tenn. 2010) (holding an officer must have something more than general prior experience of finding alcoholic beverage containers in a DUI arrestee's vehicle to justify a search of the vehicle); see also State v. Eversole , No. 15-17-03, 2017 WL 5127369, at *10 (Ohio Ct. App. Nov. 6, 2017) ("[A]lthough a law-enforcement officer's general prior experience is one of the common-sense factors to consider when deciding the reasonableness of his or her belief that evidence of specific crime is located inside a vehicle's passenger compartment, that general prior experience alone is not enough to establish a reasonable belief that evidence of [DUI] is contained in a vehicle.").

¶ 56 I am persuaded by these authorities. And because the record contains no reason particularized to Kessler or the circumstances of this case, I would conclude that the police lacked the requisite reasonable suspicion to further search the car for alcohol once they recovered the half-empty bottle of schnapps. See People v. McCarty , 229 P.3d 1041, 1046 (Colo. 2010) ("[A]lthough it is perhaps conceivable that the arrestee's vehicle might contain some evidence of the possession offense for which the officers had probable cause to arrest, nothing peculiar to these circumstances supported a reasonable suspicion that any additional evidence existed , much less that it would reside in the arrestee's vehicle, rather than on his person or elsewhere.") (emphasis added); cf. People v. Estrada , No. B221094, 2011 WL 212826, at *5-6 (Cal. Ct. App. Jan. 25, 2011) (unpublished opinion) (rejecting, under Gant , the validity of a search of a vehicle, where, following the defendant's arrest for public intoxication, the officer " 'opened the truck, discovered the container that [the defendant] tossed in there,' which was ... exactly the type of bottle from which [the officer] believed defendant had been drinking," and "continued to look in the car to see if there was [sic ] any other alcoholic beverages and what not "; and concluding, "[t]o allow a search of a vehicle here would be to permit general rummaging").

¶ 57 Because the search that uncovered the cocaine was illegal, all evidence pertaining to the cocaine or its recovery should have been suppressed at trial. The error in admitting such evidence could not be considered harmless with respect to the count charging Kessler with its possession, and Kessler's conviction on that count should be vacated.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      This is a pint. Glenn E. Rohrer et al., Calculation of Blood Alcohol Concentration in Criminal Defendants , 22 Am. J. Trial Advoc. 177, 184 (1998).

      Kessler recited the alphabet satisfactorily but showed signs of alcohol impairment in the horizontal gaze nystagmus, walk and turn, and one-legged stand parts of the standardized roadside maneuvers.

      This is the exception on which the parties and the court focused in the trial court. Another exception is the automobile exception. See People v. Zuniga , 2016 CO 52, ¶ 14, 372 P.3d 1052. The applicability of the automobile exception was not argued in the trial court or on appeal.

      Section 42-4-1301.1, C.R.S. 2017, which is commonly referred to as the "express consent" statute, allows a driver suspected of drinking to choose a method of testing for his blood alcohol level: breathalyzer or blood test; but the driver must choose one method and may not refuse the test. See § 42-4-1301.1(2)(a)(I).

      On appeal, Kessler objects to the part of an instruction that said, "[a]ccording to the law, two hours is considered a reasonable time. A test taken outside of two hours may affect the weight that should be given to results of the test."

      To be sure, defense counsel did object to the instruction-but on grounds different from those asserted on appeal. In the trial court, he objected to the instruction because it included various presumptions about blood alcohol levels obtained within a "reasonable time frame," which, he said, "we do not have here."


source: Caselaw Access Project

author: Opinion by JUDGE WELLING

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Floyd Joseph SENETTE, Defendant-Appellee.
    Court of Appeals No. 16CA1963
    Colorado Court of Appeals, Division II.
    Announced July 26, 2018 Rehearing Denied August 23, 2018
    Daniel H. May, District Attorney, Jennifer Darby, Deputy District Attorney, Tanya Karimi, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Antony Noble, Alternate Defense Counsel, Matthew Fredrickson, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellee.
   Opinion by JUDGE WELLING

¶ 1 When the victim, who was under subpoena, failed to appear at trial, the trial court denied the prosecution's request for a continuance and dismissed the charges against the defendant, Floyd Joseph Senette. The prosecution appeals the trial court's dismissal of charges. Because we conclude that the trial court abused its discretion in denying the request for a continuance and the trial court's dismissal was the consequence of that error, we reverse and remand the case for further proceedings.

I. Background

¶ 2 The prosecution charged Senette with aggravated robbery and menacing, crimes he is alleged to have perpetrated against a single victim: M.T. Senette pleaded not guilty on April 27, 2016, and trial was set for October 11, 2016, sixteen days before the end of the six month statutory speedy trial period.

¶ 3 At a trial readiness conference four days before trial, the prosecutor indicated that M.T. had not been in contact with the prosecutor's office in quite some time even though she had been personally served with a subpoena to attend trial. The prosecutor said that if M.T. did not appear at trial, she would request that the court issue a bench warrant for M.T.'s arrest and that the trial be continued.

¶ 4 As expected, M.T. did not appear on the morning of trial. The prosecutor requested a bench warrant and asked that the case be continued for one week, still within the six-month statutory speedy trial period. The prosecutor indicated to the court that the People could not prove their case without M.T.'s testimony. The court denied the request for a continuance because the prosecutor provided no indication that M.T. intended on cooperating. Then, at Senette's request, the court dismissed the case.

II. Jurisdiction

¶ 5 As a threshold matter, we address our jurisdiction to consider this appeal. Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217 (court of appeals has duty to address its jurisdiction even if not raised by the parties).

¶ 6 Prosecution appeals are permitted in Colorado by section 16-12-102, C.R.S. 2017. See People v. George , 2017 COA 75, ¶ 23, --- P.3d ----. That statute provides that any order of a court that "dismisses one or more counts of a charging document prior to trial ... [constitutes] a final order that shall be immediately appealable." § 16-12-102(1). Here, the trial court dismissed the charges against Senette prior to trial. Therefore, the statute vests us with jurisdiction to consider the People's appeal arising from that dismissal.

III. Analysis

¶ 7 The People argue that the trial court erred by denying its motion for a continuance and dismissing the case. We agree with both contentions.

A. Continuance

¶ 8 We review trial court's ruling on a motion to continue for an abuse of discretion. People v. Ahuero , 2017 CO 90, ¶ 11, 403 P.3d 171. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or is based on an erroneous understanding or application of the law. People v. McFee , 2016 COA 97, ¶ 17, 412 P.3d 848.

¶ 9 "In determining whether a continuance should be granted, the trial court must consider the peculiar circumstances of each case and balance the equities on both sides." People v. Fleming , 900 P.2d 19, 23 (Colo. 1995). When the continuance is sought to locate a missing witness, the court may consider whether the movant exercised due diligence to secure the witness's attendance. Peoplev. Crow , 789 P.2d 1104, 1106 (Colo. 1990). Other factors relevant to the trial court's inquiry include the prejudice the movant would suffer from the denial of a request for a continuance, whether that prejudice would be cured by the continuance, and the prejudice to the nonmoving party if the continuance is granted. People in Interest of D.J.P. , 785 P.2d 129, 132 (Colo. 1990).

1. Due Diligence

¶ 10 A prosecutor demonstrates diligence by using "available legal mechanisms" to secure a witness's attendance at trial. People v. Wolfe , 9 P.3d 1137, 1142 (Colo. App. 1999). In this case, the prosecutor and the prosecution's investigators knew where M.T. lived and worked; had been in contact with M.T. by phone and text message throughout the case, including on the morning of trial; and had personally served her with a subpoena to attend trial. These facts show that the prosecutor was diligent in procuring M.T.'s attendance at trial. See People v. Mann , 646 P.2d 352, 357 (Colo. 1982) ("[U]nder some circumstances, failure of a court to grant a continuance when a witness who has been subpoenaed fails to appear requires reversal."). But the record does not show that the trial court accorded weight to these facts when ruling on the prosecutor's motion to continue. Crow , 789 P.2d at 1106 (a court must evaluate all of the circumstances surrounding the requested continuance). It was arbitrary for the trial court to deny the requested continuance without recognizing the prosecutor's diligence in attempting to procure M.T.'s attendance at trial.

2. Effectiveness of the Continuance

¶ 11 A court may consider the effect a continuance will have on procuring a witness's attendance. Arellano v. People , 174 Colo. 456, 460, 484 P.2d 801, 803 (1971) (no abuse of discretion when trial court denied continuance because there were "reasonable grounds" to conclude that witnesses could be found); People v. Mandez , 997 P.2d 1254, 1266 (Colo. App. 1999) (court did not abuse its discretion by denying a continuance when it was uncertain whether a missing witness could be located). Here, the trial court placed the most emphasis on the fact that a continuance would do little to procure M.T.'s attendance at trial. But the trial court made this determination without considering whether a bench warrant would increase the likelihood that M.T. would appear in court to testify.

¶ 12 When a subpoenaed witness fails to appear at trial, the court, at the request of the subpoenaing party, "shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court." Crim. P. 17(h)(2)(A). The trial court did not grant a bench warrant despite the prosecutor's request. More importantly, the court concluded that a continuance would do little to procure M.T.'s attendance at trial without placing any weight on the fact that an active bench warrant during the period of any continuance would help compel M.T.'s attendance and make it far more likely she would appear at the rescheduled trial. The prosecutor could not obtain a bench warrant until the morning of trial. See Crim. P. 17(h)(2)(A). So, even though the prosecutor expressed a suspicion during the pretrial conference that M.T. would not appear at trial, a bench warrant did not become a legal mechanism available to her until M.T. failed to appear the morning of trial.

¶ 13 In addition, this was not a situation where a bench warrant would be of little value. See, e.g. , Mandez , 997 P.2d at 1266 (upholding the denial of a continuance when court had reason to believe that missing witness was out of state and a bench warrant would be ineffective in securing the witness's attendance). The prosecutor's investigator was on the phone with M.T. the morning of trial. The prosecutor knew where M.T. lived and worked. There is nothing in the record indicating that the trial court considered these facts in reaching its conclusion regarding the futility of a continuance. To the contrary, under these circumstances, it is reasonable to think the bench warrant would have increased the likelihood that M.T. would appear at trial.

¶ 14 Moreover, the trial court's conclusion that a bench warrant would be of little help was based on facts that lack record support. After the prosecutor requested a bench warrant, she relayed to the court a text message from her investigator. That text message stated: "Just got off the phone with [M.T.]. She's waffling. I told her you were going to ask for a warrant if she didn't show. I told her to call me back if she needed a ride. I'll keep you posted." After some back and forth discussion with both counsel, the trial court stated that it was going to take a ten minute recess and if M.T. had not arrived, the charges would be dismissed because the trial court had not received "any indication from the People that [M.T.] intends on cooperating." But neither the text message, nor any other communication that the prosecutor received from M.T., supports the conclusion that M.T. would continue to refuse to cooperate even if there were a warrant out for her arrest. In short, the trial court's conclusion is based on conjecture and does not address the possibility that the warrant might change M.T.'s mind or be effective in compelling her appearance.

¶ 15 Crim. P. 17(h)(2)(A) dictates that a party's remedy when a subpoenaed witness fails to appear is the issuance of a bench warrant, but the trial court foreclosed that remedy by ruling on the continuance without first issuing the bench warrant. The trial court, therefore, misapplied the law by deciding that a continuance would be of little help without considering the effect of a bench warrant.

3. Prejudice

¶ 16 In denying the motion, the trial court concluded that Senette would be prejudiced but gave no consideration to the fact that the prosecution would be unable to prove its case without M.T., whose attendance the prosecution could compel with the issuance of a bench warrant. This was error. D.J.P. , 785 P.2d at 132 (In ruling on a continuance, trial court must consider "the resulting prejudice to the moving party ... as well as the prejudice to the opposing party.").

¶ 17 The prejudice the prosecution suffered was evident. M.T.'s testimony was essential to the case, and by the prosecutor's admission, the prosecution would not be able to prove its case without M.T.'s testimony. Dismissing the charges before issuing a bench warrant deprived the prosecutor of the chance to prove her case with the aid of the only remedy available to her to procure the attendance of a witness who fails to appear-a bench warrant.

¶ 18 Senette does not dispute that the prosecutor was prejudiced by the denial of a continuance and bench warrant, but instead argues that any error should be disregarded because the prejudice he would have suffered greatly outweighed any prejudice the prosecution suffered. The prospect of spending additional time in jail would undoubtedly prejudice Senette. But even when the prejudice to one side is clear, the trial court must balance the equities for both parties. Id. ; see also People v. Hrapski , 718 P.2d 1050, 1054 (Colo. 1986) (denying a continuance was an abuse of discretion where denial prejudiced the prosecution but not the defense). Nor did the court consider whether the prejudice to Senette could be mitigated, for example by resetting trial within the speedy trial deadline or modifying Senette's bond conditions.

¶ 19 Because the record reveals that the trial court considered only those factors that favored Senette when ruling on the prosecution's request for a continuance, its decision on the motion to continue was arbitrary. Further, the trial court abused its discretion by misapplying the law regarding the issuance of a bench warrant as a remedy to procure the attendance of a missing witness.

B. Dismissal

¶ 20 The People next contend that the trial court erred by dismissing the charges after denying the continuance. We agree.

¶ 21 The trial court's decision to dismiss the charges was a consequence of its decision to deny the prosecution's request for a continuance. Despite Senette's contention to the contrary, the two decisions simply cannot be separated. Because we conclude that the trial court erred in denying the motion for a continuance, it follows that the trial court erred in dismissing the case.

¶ 22 Senette argues that the trial court did not dismiss on its own accord, but rather accepted the prosecutor's admission that the prosecution would not have sufficient evidence for a conviction without M.T.'s testimony. In this vein, Senette contends that we should analyze this dismissal as a voluntary dismissal by the prosecutor. But even if the prosecutor voluntarily dismissed the charges after the trial court denied its continuance, the prosecutor could appeal that ruling. See People v. Gabriesheski , 262 P.3d 653, 656 (Colo. 2011) (prosecutor may appeal trial court's ruling on defense motion in limine even though prosecution voluntarily dismissed charges after admitting it lacked sufficient evidence for a conviction given the trial court's grant of defense motions). Further, because jeopardy did not attach, nothing prevents the reinstatement of charges against Senette. People v. Leverton , 2017 COA 34, ¶ 25, 405 P.3d 402 (in a jury trial, jeopardy attaches when jury is selected or sworn).

¶ 23 The trial court erred in ruling on the prosecutor's request for a continuance and because the trial court's dismissal of charges was a direct result of that erroneous decision, the trial court's error extended to the dismissal. Accordingly, we reverse the trial court's order to dismiss.

IV. Conclusion

¶ 24 The trial court's order dismissing the case is reversed and the case is remanded with directions to reinstate the charges and set the matter for trial pursuant to section 18-1-405(6).

JUDGE DAILEY and JUDGE HAWTHORNE concur.

      This was error because Crim. P. 17(h)(2)(A) does not give a trial court discretion to issue a warrant to compel the attendance of a properly served witness. People v. Valadez , 2016 COA 62, ¶ 17, 374 P.3d 529 (use of "shall" imposes a mandatory requirement).


author: Opinion by JUDGE FOX

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Yoel SOTO-CAMPOS, Defendant-Appellee. AND The People of the State of Colorado, Plaintiff-Appellant, v. Fermin Flores-Rosales, Defendant-Appellee.
    Court of Appeals No. 18CA0664 Court of Appeals No. 18CA0665
    Colorado Court of Appeals, Division III.
    Announced August 9, 2018
    Peter A. Weir, District Attorney, Michael Freeman, Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellant
    Chad Oxman, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellee Yoel Soto-Campos
    Andres R. Guevara, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellee Fermin Flores-Rosales
   Opinion by JUDGE FOX

¶ 1 We are issuing a consolidated opinion for the appeals in case numbers 18CA0664 and 18CA0665. These cases arise from several defendants' alleged involvement in a heroin distribution enterprise. The People appeal the district court's pretrial orders (1) dismissing the sixty-first count of a grand jury indictment filed against defendants, Yoel Soto-Campos and Fermin Flores-Rosales (collectively, Defendants), for lack of probable cause; and (2) denying the prosecution's later motions to reconsider. Because the district court did not err in reviewing the challenged count under section 16-5-204(4)(k), C.R.S. 2017, and the People do not otherwise challenge dismissal of this count, we affirm.

I. Background

¶ 2 In December 2017, the prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales. The indictment's sixty-first count ("Special Offender-Within 1000 Feet of a School") charged as follows:

On and between April 11, 2017, and December 5, 2017, Fermin Flores-Rosales [and] Yoel Soto-Campos ... possessed with intent to distribute a controlled substance within one thousand feet of the perimeter of any public or private elementary school; in violation of 18-18-407(1)(g)(I) C.R.S.

The prosecution filed a superseding indictment containing the same sixty-first count the next month.

¶ 3 The Defendants' attorneys then filed motions, in case numbers 17CR4563 and 17CR4565, requesting that the district court conduct a probable cause review under section 16-5-204(4)(k). After reviewing the grand jury transcripts in camera, the court issued February 23, 2018, orders in both cases concluding that the record established probable cause for all counts except for the sixty-first, and dismissing that count. The prosecution then asked the court to reconsider, arguing that Soto-Campos and Flores-Rosales were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense.

¶ 4 The district court denied the motions to reconsider. Although the court agreed that the sixty-first count was a sentence enhancer, it concluded that Soto-Campos and Flores-Rosales were "arguably" entitled to a preliminary hearing on that count, relying on People v. Simpson , 2012 COA 156, 292 P.3d 1153, because "a defendant is entitled to a preliminary hearing on any sentence enhancer that must be proved beyond a reasonable doubt and that, if proved, would result in a class 1, 2, or 3 felony conviction." According to the court, even if Soto-Campos and Flores-Rosales were not entitled to a preliminary hearing on the subject count, conducting such a hearing was not reversible error. Lastly, the court explained that (1) the statute governing preliminary hearings differs from the statute governing probable cause reviews and (2) section 16-5-204(4)(k) 's plain language unambiguously requires a court to dismiss "any indictment of the grand jury" if the record does not support a probable cause finding.

¶ 5 The People appeal the district court's orders.

II. Probable Cause Review of the Sixty-First Count

¶ 6 The People contend that the district court erred in conducting the probable cause review at issue because, considering legal principles governing preliminary hearings, the sixty-first count is a "stand-alone" sentence enhancer and, thus, not subject to review under section 16-5-204(4)(k). We are not persuaded.

A. Preservation and Standard of Review

¶ 7 The parties agree that this issue was preserved.

¶ 8 In reviewing a district court's dismissal of a grand jury indictment, we review probable cause determinations for an abuse of discretion, but we review conclusions of law de novo. People v. Collins , 32 P.3d 636, 640 (Colo. App. 2001) ; see also People v. Keene , 226 P.3d 1140, 1142 (Colo. App. 2009). A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. People v. Relaford , 2016 COA 99, ¶ 25, 409 P.3d 490.

¶ 9 We review the interpretation of a statute de novo. People v. Fallis , 2017 COA 131M, ¶ 6, --- P.3d ----. Our primary goal is to ascertain and effectuate the General Assembly's intent. Id. We construe the statute's language, where unambiguous, according to its ordinary meaning and apply the statute as written. Id.

B. Law and Analysis

¶ 10 Defendants charged, by information or complaint, with certain felonies have the right to a preliminary hearing to "determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant." § 16-5-301(1)(a), C.R.S. 2017 (emphasis added); see also § 18-1-404(1), C.R.S. 2017 (substantially the same). "A preliminary hearing may be had with regard to offenses only," not mere sentence enhancers. Brown v. Dist. Court , 194 Colo. 45, 47, 569 P.2d 1390, 1391 (1977).

¶ 11 The district court's function in reviewing a grand jury's finding of probable cause is similar to-but not the same as-the court's role at a "preliminary hearing in determining the existence or absence of probable cause." People v. Luttrell , 636 P.2d 712, 714 (Colo. 1981). "[A]n indictment is the culmination of the probable cause screening process of the grand jury and ... functions as a constitutionally adequate substitute for a preliminary hearing." People v. Dist. Court , 199 Colo. 398, 401, 610 P.2d 490, 492 (1980) ; see also People v. Huynh , 98 P.3d 907, 910 (Colo. App. 2004) (reasoning that a defendant has no right to a preliminary hearing "after a grand jury has returned an indictment").

¶ 12 Still, after a probable cause assessment during the grand jury proceedings, a defendant charged by indictment has "the further right to challenge the grand jury's determination of probable cause" under section 16-5-204(4)(k). Dist. Court , 199 Colo. at 401, 610 P.2d at 492. This section provides that a district court "shall dismiss any indictment of the grand jury if [it] finds ... that the grand jury finding of probable cause is not supported by the record." (Emphasis added.) In conducting a review under section 16-5-204(4)(k), the district court must view the evidence in the light most favorable to the prosecution. Luttrell , 636 P.2d at 714.

¶ 13 A section 16-5-204(4)(k) probable cause review is substantively different from a probable cause review in a preliminary hearing. Section 16-5-204(4)(k) provides for further examination-in addition to, and after, the examination performed during the indictment proceedings, which substitutes for a preliminary hearing, Dist. Court , 199 Colo. at 401, 610 P.2d at 492 -of the probable cause findings supporting the charges.

¶ 14 Section 16-5-204(4)(k) 's language is unambiguous and broad in scope. This statute differs from those governing preliminary hearings ( sections 16-5-301(1)(a) and 18-1-404(1) ), which expressly concern an "offense." It is not limited to substantive offenses, but instead broadly requires a district court to dismiss "any indictment" based on a probable cause finding that lacks record support.

¶ 15 Construing this language according to its ordinary meaning, section 16-5-204(4)(k) allows for a broader probable cause review than at a preliminary hearing. See Fallis , ¶ 6. Importantly, this section covers any indictment. See Gainey v. United States , 318 F.2d 795, 797 (10th Cir. 1963) ("It has long been established that each count in an indictment, though contained in a single instrument, is to be regarded as a separate indictment[.]"); BP Am. Prod. Co. v. Colo. Dep't of Revenue , 2016 CO 23, ¶ 18, 369 P.3d 281 ("When used as an adjective in a statute, the word 'any' means 'all.' ") (citation omitted). Charging documents may include, as here, substantive offenses and sentence enhancers charged as separate counts. See, e.g. , People v. Torrez , 2013 COA 37, ¶ 23, 316 P.3d 25 (discussing counts that are "only" sentence enhancers); Felts v. Cty. Court , 725 P.2d 61, 62 (Colo. App. 1986) (addressing a case where a defendant was charged via a document containing substantive counts and "special offender" sentence enhancing counts).

¶ 16 Based on this unambiguous language, we need not decide whether the sixty-first count is a "stand-alone" sentence enhancer or is like the charge a division of this court considered in Simpson , ¶ 18 (concluding that a defendant was entitled to a preliminary hearing where he could be convicted of a class 3 felony only if the prosecution proved beyond a reasonable doubt that the property taken was worth a certain amount). Nor, for that matter, need we choose between Simpson and People v. Garcia , 176 P.3d 872, 874 (Colo. App. 2007) (holding that the defendant was not entitled to a preliminary hearing where he was not charged with a substantive felony offense requiring mandatory sentencing).

¶ 17 In other words-regardless of whether Soto-Campos and Flores-Rosales would have been entitled to a preliminary hearing on the sixty-first count had they not been charged by a grand jury indictment, see Huynh , 98 P.3d at 910 -the district court properly followed section 16-5-204(4)(k) 's mandate to review "any indictment." And as indicated, the People do not dispute the district court's finding that the grand jury record underlying the subject count does not support a finding of probable cause. We thus conclude that the district court did not err in conducting a probable cause review of the sixty-first count under section 16-5-204(4)(k) and did not abuse its discretion in dismissing this count for lack of record support. See Fallis , ¶ 6 ; Relaford , ¶ 25.

III. Conclusion

¶ 18 The orders are affirmed.

JUDGE WEBB and JUDGE RICHMAN concur.


author: Opinion by JUDGE TAUBMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kyle Lee JAMISON, Defendant-Appellant.
    Court of Appeals No. 16CA0039
    Colorado Court of Appeals, Division I.
    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.
   Opinion by JUDGE TAUBMAN

¶ 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. 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.

¶ 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.

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, 421 P.3d 1236, 1240 (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:

• 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 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?
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 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 "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, 421 P.3d at 1240. 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).

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 a dangerous instrument, and his questions on the topic using that phrase, were improper. See Fortson , ¶ 14, 421 P.3d at 1240 ; 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 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.

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." Woellhafv. 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, 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 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), 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 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, 431 P.3d 681, 695-96 (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 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 ).

¶ 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 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) 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 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, 431 P.3d 614, 630 (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.

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.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      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.").