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People v. Ross

Court of Appeals of Colorado, Seventh Division

May 23, 2019

The People of the State of Colorado, Plaintiff-Appellant,
v.
Phillip L. Ross, Defendant-Appellee.

          City 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.

          OPINION

          BERNARD JUDGE.

         ¶ 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.

         I. Introduction

         ¶ 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]," § 18-7-402(1)(b).

         ¶ 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 liability offense.

         ¶ 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 "no."

         II. Background

         ¶ 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 old.

         ¶ 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 ...


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