Opinion
Rehearing Denied June 10, 1975.
Page 1340
John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., James W. Wilson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Carol L. Gerstl, T. Michael Dutton, Deputy State Public Defenders, Denver, for defendant-appellant.
KELLY, Judge.
The defendant was convicted by a jury of introducing contraband in the first degree. Section 18--8--203, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--8--203). The verdict was based on uncontroverted evidence of defendant's possession of a 'shank', or homemade knife, discovered by two officers of the Colorado State Penitentiary during a routine 'shake-down' of prisoners.
On appeal, defendant contends that there was insufficient evidence to establish an essential element of the offense, and that the trial court erred in refusing to give his tendered instruction on introducing contraband in the second degree, s 18--8--204, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--8--204) and his tendered instruction on unlawfully carrying a concealed weapon, s 18--12--105(1)(a), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--12--105(1) (a)). We affirm.
I.
Defendant argues that s 18--8--203(1)(b) requires proof of Lawful confinement in a detention facility as an essential element of the offense of which he was convicted. Thus, he reasons, the failure of the People to introduce into evidence the mittimus under which he was being held at the time of this offense mandates reversal of his conviction. We do not agree.
Section 18--8--203(1), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--8--203(1)) provides:
'A person commits introducing contraband in the first degree if he knowingly and unlawfully: (a) Introduces or attempts to introduce a deadly weapon, narcotic drug, or dangerous drug as defined in section 12--22--403, C.R.S.1973, into a detention facility; or
(b) Being a person confined in a detention facility, makes, obtains, or has in his possession a deadly weapon, narcotic drug, or dangerous drug.'
Subsection (3) defines 'detention facility' as:
'any building, structure, enclosure, . . . institution, or place, . . . where persons are or may be lawfully held in custody or confinement under the authority of . . . the state of Colorado . . .'
There is no express requirement in this statute that persons convicted under the provisions of subsection (b) be lawfully confined. Legislative recognition of the distinction between confinement and Lawful confinement is evident when the provisions of ss 18--8--205 through 208 are compared with those of ss 18--8--202 through 204, C.R.S.1973.
It is a paramount rule of statutory construction that the legislative intent is to be given effect whenever possible. People v. Stevens, Colo., 517 P.2d 1336; People v. Sneed, Colo., 514 P.2d 776. Here, the purpose of the statute was to control contraband in penal institutions. See People v. Stevens, Supra. It is wholly immaterial to the realization of that legislative purpose whether persons convicted under subsection (b) of the statute are or are not Lawfully confined within a detention facility. Therefore, the failure of the People to produce a valid and subsisting mittimus under which the defendant in this case was being held was not fatal to the conviction.
The critical fact to be established in prosecutions under s 18--8--203(1)(b), C.R.S.1973, is that the accused person was confined as a prisoner in a detention facility at the time of the commission of the offense. The testimony of the correctional officer of the penitentiary that the defendant in this case was confined in that penal institution on the date of the offense and had been so confined for a period prior thereto was sufficient to show the defendant's confinement in a detention facility.
II.
Defendant's contention that the trial court erred in refusing his tendered instruction on contraband in the second degree as a lesser included offense of the first degree crime is predicated on the proposition that the term 'deadly weapon' as defined in s 18--1--901(3)(e), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--1--1001(3)(e)) must be read into the provisions of s 18--8--203(1)(b). The former section provides:
"Deadly weapon' means any firearm, knife, bludgeon, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which In the manner it is used or intended to be used is capable of producing death or serious bodily injury.' (emphasis supplied)
Defendant contends that when the emphasized portion of this definition is construed with s 18--8--203(1)(b), proof is required, showing that the defendant used or intended to use the knife in his possession in a manner capable of producing death or serious bodily injury, in order to establish that the knife was a deadly weapon. Absent evidence of the use or intended use of the knife in such a manner, defendant argues that a knife is not a 'deadly weapon' under the first degree contraband statute, but is, rather, an item of contraband falling within the prohibition of the second degree statute. Thus, the argument proceeds, introducing contraband in the second degree is a lesser offense included in the greater offense of introducing contraband in the first degree and that the jury should have been instructed on the lesser included offense.
A lesser offense is not included in the greater offense if the lesser contains an essential element not necessarily included in the greater. See People v. Sharpe, Colo., 514 P.2d 1138; People v. Cardwell, Colo., 510 P.2d 317. Section 18--8--204(2), C.R.S.1973, defines the contraband prohibited by the second degree statute as:
'. . . any article or thing not referred to in section 18--8--203 which a person confined in a detention facility is prohibited from obtaining or possessing by statute or a rule, regulation, or order lawfully issued by the administrative head of the detention facility.'
We do not believe that the legislature intended to create additional essential elements of the offense of introducing contraband in the first degree by statutory interpolation. As we have already said, the purpose of the statute was to prohibit contraband in penal institutions, and to effect that purpose, the legislature proscribed several enumerated items. See People v. Stevens, Supra. Deadly weapons are among the proscribed items, and a knife is, by legislative definition, a deadly weapon.
We note that the defendant was charged in the information with 'knowingly and feloniously hav(ing) in his possession a deadly weapon, namely, a knife', and that the jury was instructed on the meaning of the term 'deadly weapon' in the language of the statutory definition. We note also that the evidence ofdefendant's possession of the knife was uncontroverted and that the knife taken from him and introduced into evidence was manifestly 'capable of producing death or serious injury.' To require the additional proof that the defendant intended to use this weapon in such a manner would frustrate the legislative purpose of controlling contraband in penal institutions.
It follows that the offense of introducing contraband in the second degree is not a lesser included offense of introducing contraband in the first degree. There being no evidence in the case to warrant giving the tendered instruction as a lesser Non-included offense-theory of the case instruction under People v. Rivera, Colo., 525 P.2d 431, the trial court's refusal of the tendered instruction was proper.
III.
Defendant's contention that the trial court erred in refusing his tendered instruction on illegally carrying a concealed weapon, as a lesser but Non-included offense, is based on the rule announced in People v. Rivera, Supra. In Rivera, the defendant was convicted of assault with intent to commit murder. He contended that the trial court should have given an instruction on assault with a deadly weapon as a lesser included offense of assault with intent to commit murder. While there was testimony that Rivera had shot the gun with which he committed the offense, his intent in doing so was placed in issue by the evidence.
Although the Supreme Court, applying the statutory test, held that assault with a deadly weapon is Not a lesser included offense of assault with intent to commit murder, it concluded that there is
'no reason to bar the submission of an instruction on a Lesser offense--though not included--where it is supported by the evidence and the defendant wants it. We hold, therefore, that a theory of the case instruction which permits the jury to find a defendant innocent of the principal charge and guilty of a lesser charge should be given when warranted by the evidence.'
Here, defendant's tendered instruction paraphrased the language of s 18--12--105(1)(a), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--12--105(1)(a)), defining the crime of illegally carrying a concealed weapon. The instruction was tendered as a lesser Included offense instruction and was not in a form which would have permitted the jury to find the defendant innocent of the principal offense, but guilty of the lesser one. On the contrary, the jury would have been warranted in returning a verdict of guilty of both the greater and the lesser offenses under the rule stated in People v. Hancock, Colo., 525 P.2d 435; People v. Bugarin, 181 Colo. 62, 507 P.2d 875.
The fact that there was not only uncontroverted evidence in this case of the defendant's possession of the knife, but also evidence from which the jury could have inferred that he carried it concealed on his person, does not provide a basis for acquittal of the greater offense. Under these circumstances, the rule announced in Rivera is inapplicable.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.