and County of Denver District Court No. 15CR5842 Honorable
Andrew P. McCallin, Judge
Elizabeth McCann, District Attorney, Johanna G. Coats, Deputy
District Attorney, Denver, Colorado, for Plaintiff-Appellant.
Mallika L. Magner, Alternate Defense Counsel, Crested Butte,
Colorado, for Defendant-Appellee.
1 This is an appeal by the prosecution in a criminal case.
The prosecution asks us to disapprove two rulings that the
trial court made during the trial of defendant, Phillip L.
Ross. It contends that the court erred when it (1) partially
granted defendant's motion for a judgment of acquittal
and dismissed two counts of soliciting for child prostitution
under section 18-7-402(1), C.R.S. 2018; and (2) submitted the
lesser offense of soliciting for prostitution under section
18-7-202, C.R.S. 2018, for the jury's consideration.
Because we conclude that the court did not err, we approve
these two rulings.
2 Consider the parallels between the group of statutes
generally pertaining to prostitution and the group of
statutes specifically pertaining to prostitution of children.
(In this context, a child is a "person under the age of
eighteen years." § 18-7-401(2), C.R.S. 2018.)
3 First, the two groups include many of the same crimes, but
the legislature penalizes the ones with child victims more
severely. For example, the crime of soliciting another for
prostitution is a class 3 misdemeanor. § 18-7-202(2).
The offense of soliciting for child prostitution is a class 3
felony. § 18-7-402(2).
4 Second, the elements of the offenses are similar. For
example, the crime of soliciting another for prostitution is
committed when a person either "[s]olicits another for
the purpose of prostitution," § 18-7-202(1)(a), or
"[a]rranges or offers to arrange a meeting of persons
for the purpose of prostitution," § 18-7-202(1)(b).
The offense of soliciting for child prostitution occurs if a
person either "[s]olicits another for the purpose of
[child prostitution]," § 18-7-402(1)(a), or
"[a]rranges or offers to arrange a meeting of persons
for the purpose of [child prostitution]," §
5 Third, both groups include statutes that prohibit specified
conduct with prostitutes or with child prostitutes.
Compare § 18-7-203(1)(a), C.R.S. 2018
(pandering), and § 18-7-205(1)(a), (2), C.R.S.
2018 (patronizing a prostitute), with §
18-7-403(1), (2), C.R.S. 2018 (pandering of a child),
and § 18-7-406(1)(a), C.R.S. 2018 (patronizing
a prostituted child).
6 But, as is relevant to our analysis in this case, the group
of child prostitution statutes includes something that the
group of general prostitution statutes does not. Section
18-7-407, C.R.S. 2018, states that, in "any criminal
prosecution under sections 18-7-402 to 18-7-407, it shall be
no defense that the defendant did not know the child's
age or that he reasonably believed the child to be eighteen
years of age or older." We shall refer to this statute
as "section 407."
7 This appeal asks us to resolve three questions arising out
of the intersection of the crime of soliciting for child
prostitution and section 407.
8 What is the function of the phrase "for the purpose
of," as used in "[s]olicits another for the purpose
of [child prostitution]" and "[a]rranges or offers
to arrange a meeting of persons for the purpose of [child
prostitution]?" § 18-7-402(1)(a), (b). We conclude
that it means that a defendant must have had the specific
intent to solicit another for child prostitution.
9 What effect does section 407 have on the crime of
soliciting for child prostitution? We conclude that, unlike
some other crimes, such as pandering of a child or
patronizing a prostituted child, soliciting for child
prostitution does not require the prosecution to prove that
the victim was a child. Rather, the gravamen of the offense
is the defendant's intent to solicit for the purpose of
child prostitution, and it does not matter whether the
"other" whom the defendant solicits is actually a
child or is actually an adult. As a result, section 407 does
not have any effect on the prosecution's obligation to
prove the defendant's intent, and it does not turn the
crime of soliciting for child prostitution into a strict
10 Does section 407 bar trial courts from submitting
instructions on the lesser offense of soliciting another for
prostitution in cases in which defendants are charged with
soliciting for child prostitution? We conclude that, under
the facts of this case, the answer to this question is
11 Two girls under the age of eighteen, sometimes working
with others, used a website to place several advertisements
announcing their willingness to perform sex acts in exchange
for money. The different advertisements listed varying ages
for the girls, but they all read that the girls were at least
nineteen years old.
12 After seeing the advertisements, defendant texted the
girls and negotiated a price that he would pay in exchange
for sex acts. When the police arrested him, he admitted
texting the girls to solicit sex, but he maintained that he
had thought he was contacting "adult females."
13 As is pertinent to this appeal, the prosecution charged
him with four counts of soliciting for child prostitution:
two under section 18-7-402(1)(a), each naming one of the
girls, and two under section 18-7-402(1)(b), each naming one
of the girls.
14 After the prosecution's case-in-chief, defense counsel
moved for judgment of acquittal on the four soliciting
counts. Counsel argued that the prosecution had not presented
any evidence to prove the culpable mental state of the crime
of soliciting for child prostitution, which was that
defendant had solicited or arranged a meeting of persons
for the purpose of child prostitution. The
prosecutor replied that defendant's position was
untenable because section 407 prevented him from raising the
defenses that he did not know the girls' ages or that he
reasonably believed the girls were at least eighteen years
15 The trial court agreed with the defense. The court decided
that section 407 prevented defendant from presenting a
defense that he "believed that the prostitute was of
legal age," but that it did not relieve the prosecution
of its burden to prove that the soliciting or arrangement was
"for the purposes of child prostitution."
16 Because it was undisputed that the prosecution had not
presented any direct evidence of defendant's intent, the
court focused on circumstantial evidence, such as whether
defendant knew or should have known about the two girls'
ages. The court concluded that the jury "could
reasonably determine that [the first girl] was underage"
based on a photograph of her in the advertisements. But there
was no photograph of the second girl, and the only
information about her in the advertisements was that she was
nineteen or twenty years old. So the court decided that the
prosecution had not presented any evidence that defendant had
solicited the second girl "for the purpose of ...