     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                April 23, 2019

                                2020COA71

No. 17CA0026, People v. Maloy — Constitutional Law —
Colorado Constitution — Equal Protection; Crimes —
Patronizing a Prostituted Child — Inducement of Child
Prostitution — Soliciting for Child Prostitution — Pandering of
a Child

     A division of the court of appeals holds that, under the facts of

this case, charging the defendant with patronizing a prostituted

child violated his right to equal protection of the laws because doing

so subjected him to a longer sentence than he faced for other child

prostitution offenses proscribing the same or more culpable

conduct.
COLORADO COURT OF APPEALS                                          2020COA71


Court of Appeals No. 17CA0026
Jefferson County District Court No. 15CR701
Honorable Margie L. Enquist, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cravaughn Lacrae Maloy,

Defendant-Appellant.


                        JUDGMENT AND SENTENCE
                  AFFIRMED IN PART AND VACATED IN PART

                                  Division V
                        Opinion by JUDGE J. JONES
                        Harris and Brown, JJ., concur

                           Announced April 23, 2020


Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Cox, Deputy State Public
Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Cravaughn Lacrae Maloy, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of patronizing

 a prostituted child, pimping of a child, keeping a place of child

 prostitution, and inducement of child prostitution. He also appeals

 the indeterminate sentence of four years to life in the custody of the

 Department of Corrections (DOC), imposed for his patronizing

 conviction.

¶2    We conclude that, under the facts of the case, charging Maloy

 with patronizing a prostituted child violated his right to equal

 protection of the laws. Accordingly, we vacate his conviction and

 sentence on that count. We otherwise affirm the judgment.

                           I.   Background

¶3    Two teenagers, M.C. (seventeen) and R.S. (about fifteen), ran

 away from their group home. A little over a week later, they met

 Maloy — who was nineteen years old at the time — at a bus stop in

 Lakewood. They ran into him again the next day and walked with

 him to some apartments, where M.C. and Maloy talked. Apparently

 while there, M.C. started crying and Maloy told her “to shut up or

 he was going to beat [her] up or something.”




                                   1
¶4    Sometime later, either that same day or the next, Maloy told

 M.C. to stand on the corner near the White Swan Motel and sell

 herself.1 She testified that she did so because she “didn’t know how

 to say no” and was scared of Maloy. After she stood on the corner

 for a while, a customer picked her up and they went to his house

 for sex; afterward, he dropped her back off at the motel and she

 kept all the money he had paid her.

¶5    Maloy let M.C. stay with him that night. They went to an

 apartment where M.C. met Alicia Sykes, Maloy’s girlfriend. Maloy

 told M.C. she had to work to stay there: she had to sell herself and

 make him money.

¶6    Over the next several days, M.C. continued to prostitute

 herself with Sykes. She had sex with another customer in a room

 at the White Swan Motel. To help attract more customers, Sykes

 took pictures of M.C. and posted them to a backpage.com ad she

 bought with a prepaid credit card. According to M.C., customers

 would call the number on the ad — which went to Sykes’s phone —


 1 R.S. wasn’t involved. Police arrested her later that day after a
 family friend saw her at a Burger King and called 911. M.C. and
 Maloy were with R.S. at the Burger King, but M.C. didn’t ask the
 police for help.

                                   2
 and set up meetings with M.C. through Sykes. Sykes told M.C.

 what to charge; M.C. would take the money she earned from

 customers and give it to Sykes or Maloy. She said that sometimes

 she was sleeping when a customer would call, and either Sykes or

 Maloy would wake her up and tell her to take a shower to get ready.

 M.C. also explained that on one occasion Maloy showed her the

 money that she had made and told her “good job.”

¶7    Several days later, M.C. went to a Walmart, where a man

 picked her up. They drove into the mountains together. Police

 stopped the truck in Idaho Springs, discovered warrants for M.C.,

 and arrested her.

¶8    Maloy, Sykes, and several of the customers were charged as a

 result of the prostitution operation. Maloy’s case went to trial. He

 argued that he didn’t induce M.C. to prostitute herself, didn’t take

 money from her, and wasn’t involved in the prostitution — instead,

 Sykes and M.C. had prostituted themselves of their own free will.

 Maloy also tried to argue that he reasonably believed M.C. was at

 least eighteen, but the district court denied his motion to allow an

 affirmative defense based on that belief. The court later instructed

 the jury on complicity. Ultimately, the jury found Maloy guilty of


                                   3
 patronizing a prostituted child, pimping of a child, keeping a place

 of child prostitution, and inducement of child prostitution.2 The

 court sentenced him to four years in DOC custody on all counts

 except for count 4 — patronizing a prostituted child — for which it

 sentenced him to four years to life pursuant to the Colorado Sex

 Offender Lifetime Supervision Act of 1998 (SOLSA).

                           II.   Discussion

¶9    We conclude that, under the circumstances of this case,

 charging Maloy with patronizing a prostituted child violated his

 right to equal protection of the laws under the Colorado

 Constitution. We therefore vacate his conviction on that charge. As

 a result, we don’t need to address all of his other contentions.

 Those that we must address — because they pertain to all of

 Maloy’s convictions — are that (1) the district court erred by

 determining that section 18-7-407, C.R.S. 2019, prohibited him

 from raising a reasonable mistake of age defense; (2) if, because of

 section 18-7-407, mistake of age isn’t a defense to child prostitution


 2Maloy was charged with, but acquitted of, soliciting for child
 prostitution and pandering of a child (inducement). The People also
 charged him with contributing to the delinquency of a minor but
 agreed to dismiss that count on the morning of trial.

                                   4
  crimes, that statute violates his right to equal protection and

  deprives him of due process; (3) the district court erred by rejecting

  his tendered jury instructions on complicity; and (4) the prosecutor

  committed misconduct by misrepresenting facts during closing

  argument. We reject these contentions and affirm Maloy’s other

  convictions.

        A.     Constitutionality of Patronizing a Prostituted Child

¶ 10   Maloy contends that section 18-7-406(1)(a), C.R.S. 2019, is

  unconstitutional because (1) it is unconstitutionally vague and (2)

  as applied to him, it violates his right to equal protection. We

  address the second contention first. Because we agree with Maloy’s

  equal protection challenge we don’t address his vagueness

  challenge.

                         1.    Standard of Review

¶ 11   We review constitutional challenges to a statute de novo.

  People v. Graves, 2016 CO 15, ¶ 9; People v. Slaughter, 2019 COA

  27, ¶ 15. Because Maloy didn’t preserve his equal protection

  argument, we won’t reverse unless any error was plain. Hagos v.

  People, 2012 CO 63, ¶ 14. Plain error is error that is both “obvious

  and substantial.” Id. The latter requirement means that the error


                                     5
  must have so undermined the fundamental fairness of the trial as

  to cast serious doubt on the reliability of the judgment of

  conviction. Id.

               2.    As-Applied Equal Protection Challenge

¶ 12   Maloy argues that, as applied to his conduct, section 18-7-

  406(1)(a) — criminalizing patronizing a prostituted child — violates

  his right to equal protection of the laws because it prohibits

  essentially the same conduct, or less culpable conduct, as other

  child prostitution offenses (specifically, soliciting for child

  prostitution, pandering of a child, and inducement of child

  prostitution) while carrying a much higher sentence. We agree as to

  pandering and inducement.

                            a.    Applicable Law

¶ 13   “Colorado’s guarantee of equal protection is violated where two

  criminal statutes proscribe identical conduct, yet one punishes that

  conduct more harshly.” Dean v. People, 2016 CO 14, ¶ 14.

  Similarly, “[s]tatutes prescribing different sanctions for what

  ostensibly might be different acts, but offering no rational standard

  for distinguishing such different acts for purposes of disparate

  punishment, also contravene the equal protections guaranties of


                                      6
  Colorado’s constitution.” People v. Wilhelm, 676 P.2d 702, 704

  (Colo. 1984). And “Colorado’s guarantee of equal protection is

  violated where two statutes proscribe similar conduct, yet the

  scheme imposes the harsher penalty for acting with intent to cause,

  or for actually causing, a less grievous result.” Dean, ¶ 15; see,

  e.g., People v. Montoya, 196 Colo. 111, 114-15, 582 P.2d 673, 675-

  76 (1978).

¶ 14   But “criminal legislation is not invalidated simply because a

  particular act may violate more than one statutory provision[.]”

  People v. Onesimo Romero, 746 P.2d 534, 537 (Colo. 1987). Rather,

  in considering an as-applied equal protection challenge, “we

  consider whether — under the specific circumstances under which

  [the defendant] acted — the relevant statutes, or specific

  subsections of the statutes, punish identical conduct, and whether

  a reasonable distinction can be drawn between the conduct

  punished by the two statutes.” People v. Trujillo, 2015 COA 22,

  ¶ 21 (citing Onesimo Romero, 746 P.2d at 538-39).3 A reasonable


  3 Citing Campbell v. People, 73 P.3d 11 (Colo. 2003), the People
  argue that we are limited to comparing the statutory elements of the
  relevant offenses in resolving Maloy’s equal protection challenge.
  But we agree with Maloy that an as-applied challenge, in contrast to

                                    7
  distinction is one that is “real in fact and reasonably related to the

  general purposes of criminal legislation.” People v. Marcy, 628 P.2d

  69, 74 (Colo. 1981).

                               b.    Analysis

¶ 15   The People challenge the premise of Maloy’s contention,

  suggesting that since all of the other offenses to which he points

  are, like patronizing, at least class 3 felonies, they are subject to

  equal or higher sentencing ranges, meaning there is no disparate

  treatment. The People miss the mark.

¶ 16   Soliciting and inducement are both class 3 felonies and carry

  sentences of four to twelve years in DOC custody. §§ 18-1.3-

  401(1)(a)(V)(A), 18-7-402(2), 18-7-405.5(2), C.R.S. 2019. Depending

  on the subsection, pandering is either a class 3 felony or a class 2

  felony (with a presumptive range of eight to twenty-four years in

  DOC custody). §§ 18-1.3-401(1)(a)(V)(A), 18-7-403(2), C.R.S. 2019.

  Patronizing is a class 3 felony as well, see § 18-7-406(2), but is

  included among SOLSA-punishable crimes, and therefore carries a



  a facial challenge, permits consideration of the facts giving rise to
  the charge. See People v. Lee, 2019 COA 130, ¶ 16. And this isn’t
  one of those cases that requires a more fully developed record to
  assess the as-applied challenge.

                                      8
  sentence of four years to life. §§ 18-1.3-1003(5)(a)(X), -1004(1)(a),

  C.R.S. 2019.4 Under the SOLSA sentencing scheme, the defendant

  is eligible for release at the bottom of the sentenced range (in

  Maloy’s case, four years), but may, at the parole board’s discretion,

  remain in prison indefinitely.

¶ 17   When analyzing an equal protection claim, Colorado courts

  “compare[] the relative severity of sentences by reference to the

  maximum possible period of incarceration, not the timing of parole

  eligibility.” Dean, ¶ 10. Under this approach, a sentence that could

  potentially leave an offender in prison for life is necessarily harsher

  than a sentence with a maximum twelve-year (or twenty-four-year)

  end date. We therefore reject the People’s argument.


  4 Patronizing a child is the only child prostitution offense subject to
  sentencing under SOLSA. We presume that the General Assembly
  made that choice because it believed patronizing a child prostitute
  by “[e]ngag[ing] in an act which is prostitution . . . by a child” is the
  only child prostitution offense that requires proof of sexual conduct
  by the child victim. § 18-7-406(1)(a), C.R.S. 2019. But, as we
  discuss below, it is not clear that proof of such conduct is required
  to prove prostitution by a child. See § 18-7-401(6), C.R.S. 2019.
  And such proof clearly isn’t required to prove patronizing a child
  prostitute by “[e]ngag[ing] in an act which is prostitution of a child,”
  § 18-7-406(1)(a) (emphasis added); see § 18-7-401(7), which is what
  creates the equal protection problem in this case. Perhaps the
  General Assembly should revisit that issue, as well as the language
  of the child prostitution offenses generally.

                                      9
¶ 18   We also reject the People’s argument that patronizing is

  distinguishable from the other offenses in that it is “the only offense

  that criminalizes sexual contact with a prostituted child.” True, a

  person may violate the statute by having sexual contact with a

  prostituted child. But such contact isn’t required to prove a

  violation. In the case of prostitution by a child, the child need only

  offer or agree to perform certain sexual acts (in exchange for money

  or other thing of value). See § 18-7-401(6). In the case of

  prostitution of a child, the defendant need only induce the child (by

  coercion, threat, or intimidation) to perform or offer or agree to

  perform certain sexual acts with a third party, not the defendant.

  See § 18-7-401(7).

¶ 19   We turn now to the application of the patronizing statute to

  Maloy’s conduct.

¶ 20   Maloy was charged with and convicted of patronizing a

  prostituted child under section 18-7-406(1)(a), which criminalizes

  “[e]ngag[ing] in an act which is prostitution of a child or by a child,

  as defined in section 18-7-401(6) or (7).” During her opening

  statement, the prosecutor explained that Maloy scared M.C.; that

  he threatened to assault her if she didn’t do as she was told; and


                                     10
  that he told her to prostitute herself to earn money (and that she

  did so because of Maloy’s threats). During the evidentiary phase of

  the trial, the prosecution introduced evidence to that effect: Maloy

  threatened and scared M.C. and told her to prostitute herself —

  which she did — and Maloy received a cut of the money.

¶ 21   Based on this evidence and the prosecutor’s explanation of the

  People’s theory, Maloy’s alleged conduct fell under the “prostitution

  of a child” option — specifically, that Maloy induced M.C. to perform

  certain sexual acts (with third persons, not Maloy), or induced her

  to allow others to perform such acts, by coercion or threat or

  intimidation or in exchange for money or other thing of value. See

  § 18-7-401(7) (defining “[p]rostitution of a child”).

¶ 22   As noted, Maloy argues that three other statutes — soliciting

  for child prostitution, pandering of a child, and inducement of child

  prostitution — proscribe essentially the same conduct, but carry

  more lenient sentences. We disagree as to soliciting, but agree that,

  as applied to Maloy’s conduct, Maloy’s conviction for patronizing

  violates equal protection because pandering and inducement

  penalize the same or more culpable conduct with lighter sentences.




                                     11
                                 i.   Soliciting

¶ 23   Pursuant to section 18-7-402(1), a person commits soliciting

  for child prostitution if he

             (a)   Solicits another for the purpose of
                   prostitution of a child or by a child;
             (b)   Arranges or offers to arrange a meeting of
                   persons for the purpose of prostitution of
                   a child or by a child; or
             (c)   Directs another to a place knowing such
                   direction is for the purpose of prostitution
                   of a child or by a child.

¶ 24   This section does not proscribe the same conduct as

  patronizing a prostituted child (prostitution of a child), even as

  applied to Maloy. It prohibits certain actions — soliciting, arranging

  or offering to arrange a meeting, and directing someone to a place

  — for the purpose of prostitution of or by a child. Under this

  section, the defendant’s conduct is criminal regardless of what the

  child does, and it doesn’t require that the defendant interact with a

  child at all. In contrast, as applied to Maloy, patronizing requires

  that the child actually perform, offer, or agree to perform certain

  sexual acts. And it requires that the defendant induce the child to

  do so by coercion, threat, or intimidation, or in exchange for money




                                      12
  or other thing of value. So Maloy’s equal protection claim fails with

  respect to soliciting.

                              ii.   Pandering

¶ 25   A person commits pandering of a child (a class 2 felony) if the

  person, for money or other thing of value, “[i]nduc[es] a child by

  menacing or criminal intimidation to commit prostitution[.]” § 18-

  7-403(1)(a). Pandering is a class 3 felony if, “for money or other

  thing of value,” a person “[k]nowingly arrang[es] or offer[s] to

  arrange a situation in which a child may practice prostitution.”

  § 18-7-403(1)(b).

¶ 26   Pandering under subsection (1)(b) prohibits substantially

  different conduct than that criminalized as patronizing. It requires

  arranging or offering to arrange a situation in which a child may

  practice prostitution; patronizing doesn’t criminalize that behavior.

  And like soliciting, pandering under subsection (1)(b) doesn’t

  require that the child do anything. The crime is arranging the

  situation, regardless of whether a child ultimately engages in

  prostitution or is even present in the scenario.

¶ 27   But subsection (1)(a) is a different story. True, there are two

  apparent, facial differences between that crime and patronizing.


                                     13
  One, pandering requires that the defendant act in exchange for

  “money or other thing of value,” while patronizing may involve, but

  doesn’t necessarily require, such an exchange (coercion, a threat, or

  intimidation suffices). Two, pandering requires that the defendant’s

  actions amount to menacing or criminal intimidation, while, again,

  patronizing may involve, but doesn’t require, such conduct (mere

  coercion, threat, or intimidation, or an exchange of money or other

  thing of value suffices). But in the context of this equal protection

  claim, these differences are meaningless. This is so for two reasons.

¶ 28   First, requiring proof of more elements (both an exchange of

  money or other thing of value and menacing or criminal

  intimidation) to obtain a conviction for pandering under subsection

  (1)(a) — which is not subject to indeterminate sentencing — means

  that the prosecution must prove more than it must to obtain a

  conviction under the statute bearing the harsher penalty.

  Punishing a defendant more severely for a crime that may require

  less proof “bears no rational relationship to a legitimate legislative

  purpose or government objective” and seems unreasonable and

  arbitrary. Dean, ¶ 12.




                                     14
¶ 29   Second, under many applications of the patronizing statute,

  and certainly under the application in this case, patronizing does

  not have “greater social impact and more grave consequences.”

  Montoya, 196 Colo. at 113, 582 P.2d at 675. Indeed, proving

  pandering under subsection (1)(a), under which Maloy was charged

  (but acquitted), requires a showing that the defendant induced a

  child to commit prostitution “by menacing or criminal intimidation”

  — more blameworthy conduct than that proscribed by the

  patronizing statute. Smith v. People, 852 P.2d 420, 421-22 (Colo.

  1993); People v. Suazo, 867 P.2d 161, 164-66 (Colo. App. 1993).

                            iii.   Inducement

¶ 30   A person commits inducement of child prostitution if he, “by

  word or action, other than [by menacing or criminal intimidation],

  induces a child to engage in an act which is prostitution by a

  child[.]” § 18-7-405.5.

¶ 31   Breaking this down, a conviction under this statute requires

  that a defendant, (1) by some word or action, (2) induce a child to

  perform or offer or agree to perform “[certain sexual acts] [3] with




                                    15
  any person not the child’s spouse [4] in exchange for money or

  other thing of value[.]” §§ 18-7-401(6), -405.5.5

¶ 32   As noted, patronizing a prostituted child prohibits (among

  other things) a person from engaging in inducing a child to perform

  or offer or agree to perform (or allow another to perform or offer or

  agree to perform) the same sexual acts by coercion, threat, or

  intimidation, or in exchange for money or other thing of value. See

  §§ 18-7-401(7), -406(1)(a).

¶ 33   The critical facial difference between inducement and

  patronizing in this context is that inducement requires proof that

  “money or other thing of value” was exchanged; patronizing

  criminalizes that conduct, but it doesn’t necessarily require it:

  again, coercion or a threat or intimidation suffices.

¶ 34   But again, this potential distinction doesn’t convince us that

  the offenses are different in a way that would defeat Maloy’s as-

  applied equal protection argument. As noted, in Maloy’s case,



  5 This is so because prostitution by a child requires an exchange of
  “money or other thing of value,” § 18-7-401(6), and inducement
  specifically proscribes inducing a child to engage in prostitution by
  a child. Prostitution of a child can, but doesn’t necessarily, require
  that money or a thing of value be exchanged. See § 18-7-401(7).

                                    16
  money was exchanged. Thus, his conduct violated both statutes in

  precisely the same way.

                             c.   Disposition

¶ 35   We conclude that the patronizing statute violates equal

  protection as applied to Maloy and that this violation was obvious

  and substantial. It resulted in Maloy’s potential lifetime

  imprisonment, rather than a determinate sentence of four to twelve

  years. We therefore vacate Maloy’s conviction for patronizing. See,

  e.g., People v. Mumaugh, 644 P.2d 299, 301 (Colo. 1982) (vacating

  the defendant’s conviction after concluding it violated his right to

  equal protection); Suazo, 867 P.2d at 168 (same); cf. People v. Lee,

  2019 COA 130 (affirming dismissal of counts that violated equal

  protection).

                      B.    Mistake of Age Defense

¶ 36   Maloy contends that the district court erred by refusing to

  allow him to assert a reasonable mistake of age defense and

  introduce evidence that he thought M.C. was at least eighteen.

  Specifically, he argues that this defense is available under a correct

  interpretation of sections 18-1-503.5(1), C.R.S. 2019, and 18-7-407,

  and that reading the statutes to preclude that defense in this case


                                    17
  violates his rights to equal protection and due process.6 We aren’t

  persuaded.

                        1.    Standard of Review

¶ 37   We review questions of statutory interpretation de novo.

  McCoy v. People, 2019 CO 44, ¶ 37. We also review constitutional

  challenges to a statute de novo. People v. Perez-Hernandez, 2013

  COA 160, ¶ 10.

  2.    Sections 18-1-503.5(1) and 18-7-407 Don’t Allow a Mistake of
                   Age Defense to The Remaining Charges

¶ 38   Section 18-1-503.5(1) provides in pertinent part that “[i]f the

  criminality of conduct depends on a child being younger than

  eighteen years of age and the child was in fact at least fifteen years

  of age, it shall be an affirmative defense that the defendant

  reasonably believed the child to be eighteen years of age or older.”

  In contrast, section 18-7-407 provides that, “[i]n 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.”



  6 He also argues that there was sufficient evidence to support his
  reasonable mistake of age defense; but because we conclude that
  this defense isn’t available, we don’t address that argument.

                                    18
  (Emphasis added.) So with respect to Maloy’s convictions for

  pimping a child, keeping a place of prostitution, and inducement of

  child prostitution, all of which arise under sections 18-7-402 to

  -407, these two provisions conflict. See People v. Houser, 2013

  COA 11, ¶ 19.

¶ 39   When two provisions irreconcilably conflict, the specific

  provision prevails over the general provision “unless the general

  statute was enacted more recently than the specific statute, and the

  legislature manifestly intends that the later-enacted general statute

  prevail over the earlier-enacted specific statute.” Jenkins v. Pan.

  Canal Ry. Co., 208 P.3d 238, 241-42 (Colo. 2009). Section 18-7-

  407 is more specific because it prohibits the mistake of age defense

  for certain crimes, while section 18-1-503.5(1) allows the defense

  generally. But section 18-1-503.5(1) was enacted more recently

  than section 18-7-407.7 So, Maloy argues, section 18-1-503.5(1)

  should apply because the General Assembly demonstrated a

  manifest intent that the general provision prevail. We disagree.



  7 Section 18-1-503.5 was added in 2001. Ch. 243, sec. 6, 2001
  Colo. Sess. Laws 859. Section 18-7-407 has “remained unchanged
  since reenactment in 1979[.]” People v. Houser, 2013 COA 11, ¶ 26.

                                    19
¶ 40   In Houser, a division of this court addressed and rejected the

  same argument. Noting that the General Assembly’s intent is only

  “manifest” when it is “clear and unmistakable,” the division

  concluded that section 18-7-407 prevails and therefore precluded

  the defendant from raising a reasonable mistake of age defense to

  the charge of patronizing a prostituted child. Houser, ¶¶ 20-26. To

  support this conclusion, the division discussed the mixed evidence

  from the legislative record, including the following:

           The first sentence of section 18-1-503.5 was originally in

             the part of the criminal code relating to “unlawful sexual

             behavior.” The 2001 bill moved it to the article

             containing “provisions applicable to offenses generally.”

             Id. at ¶ 21.

           The sponsor of the bill in the House said that the bill was

             meant to “clarif[y]” the law and “doesn’t change very

             much.” Id. at ¶ 25.

           Another House sponsor explained that the provision was

             only meant to apply to offenses that are criminal solely

             because of the victim’s age — for example, providing




                                    20
             tobacco to minors. (Providing tobacco to an adult isn’t a

             crime.) Id. at ¶ 24.

           There was no discussion of how the bill would affect

             section 18-7-407. Id. at ¶ 26.

¶ 41   We agree with Houser that while there is some evidence that

  the General Assembly intended this provision to apply to all crimes,

  the mixed legislative history doesn’t evince a clear, unmistakable

  intent for the later, general provision to prevail over the earlier,

  more specific one.

¶ 42   Maloy cites Gorman v. People, 19 P.3d 662 (Colo. 2000), a

  supreme court case from 2000 that led to section 18-1-503.5(1)’s

  relocation and amendment, in support of his argument that the

  affirmative defense is available in child prostitution offenses. In

  Gorman, the court held that the affirmative defense applies to the

  offense of contributing to the delinquency of a minor because the

  criminality of a defendant’s conduct depends on the victim being a

  minor. Id. at 667. But we don’t read Gorman to hold that

  reasonable mistake of age is an affirmative defense in child

  prostitution offenses. Rather, Gorman suggests (like one sponsor of

  the relocation and amendment bill explained) that the defense is


                                     21
  applicable where an offense’s criminality is based solely on the

  victim’s age. (There is no analogous crime of contributing to the

  delinquency of an adult.) And in any event, Gorman didn’t involve a

  child prostitution offense to which the bar of section 18-7-407

  applied. Thus, Gorman is distinguishable.

¶ 43        We therefore conclude that the district court didn’t err by

  ruling that the affirmative defense of reasonable mistake of age

  wasn’t available to Maloy.

       3.     Section 18-7-407 Doesn’t Violate Equal Protection or Due
                                     Process

¶ 44        In the alternative, Maloy contends that if mistake of age isn’t

  an affirmative defense to patronizing a prostituted child, section 18-

  7-407 violates his rights to equal protection and due process.

                              a.    Equal Protection

¶ 45        Maloy argues that disallowing a mistake of age defense for

  child prostitution crimes but allowing it for other crimes involving

  minors as victims violates equal protection. More specifically, he

  argues that even if there is a rational basis for imposing harsher

  penalties when the victim is a minor than when the victim is an




                                        22
  adult,8 “that justification disappears when the victim is close to 18,

  and the defendant reasonably believes that she is at least 18.” We

  don’t agree.

¶ 46   The United States and Colorado Constitutions guarantee that

  no person shall be denied equal protection of the law. U.S. Const.

  amend. XIV; Colo. Const. art. II, § 25. Equal protection “assures

  that those who are similarly situated will be afforded like

  treatment.” People v. Griego, 2018 CO 5, ¶ 35. The General

  Assembly may impose harsher penalties “for acts that it perceives to

  have graver social consequences,” but the statutory classification of

  crimes must be “based on differences that are real in fact and

  reasonably related” to that purpose. Id. at ¶ 36 (quoting People v.

  Jefferson, 748 P.2d 1223, 1226 (Colo. 1988)); see Suazo, 867 P.2d

  at 164. When, as in this case, the classification doesn’t implicate a

  traditionally suspect class or fundamental right, we apply rational

  basis review: the party challenging the statute must show that “the


  8 Keeping a place of child prostitution, for instance, is a class 3
  felony with a sentencing range of four to twelve years in DOC
  custody. See §§ 18-1.3-401(1)(a)(V)(A), 18-7-404, C.R.S. 2019. But
  keeping a place of prostitution is a class 2 misdemeanor with a
  maximum sentence of twelve months’ imprisonment. See §§ 18-
  1.3-501(1)(a), 18-7-204, C.R.S. 2019.

                                    23
  statute’s classification bears no rational relationship to a legitimate

  legislative purpose or government objective, or that the

  classification is otherwise unreasonable, arbitrary, or capricious.”

  Dean, ¶ 12.9

¶ 47   We start by recognizing that there is a rational basis for

  drawing a line between adults and minors when it comes to

  prostitution-related offenses. The Supreme Court has held that “[i]t

  is evident beyond the need for elaboration that a State’s interest in

  ‘safeguarding the physical and psychological well-being of a minor’

  is ‘compelling,’” and that the “prevention of sexual exploitation and

  abuse of children constitutes a government objective of surpassing

  importance.” New York v. Ferber, 458 U.S. 747, 756-57 (1982)

  (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607

  (1982)). Imposing harsher penalties for prostitution-related




  9 Maloy’s imprisonment doesn’t implicate a fundamental right. See
  People v. Young, 859 P.2d 814, 818 (Colo. 1993) (“An adult offender
  has no fundamental liberty interest in freedom from
  incarceration.”); People v. Garberding, 787 P.2d 154, 156 (Colo.
  1990) (“[F]elons are not entitled to a particular, or lenient,
  sentence.”). Nor has Maloy argued that this classification
  implicates a traditionally suspect class.

                                    24
  offenses involving minors is directly related to the goal of protecting

  minors.

¶ 48   With this in mind, we conclude that there is a rational basis

  for precluding defendants from avoiding conviction on such offenses

  by asserting that they didn’t know the victim was under eighteen

  while not precluding such a defense to other offenses involving

  minors as victims. As noted, child prostitution presents unique

  opportunities for continued sexual exploitation and abuse. And as

  noted by the People, in enacting section 18-7-407, the General

  Assembly recognized that child prostitutes may look and act like

  adults, and wanted that not to be a defense. See Hearings on H.B.

  1574 before the H. Health, Env’t, Welfare & Instits. Comm., 52d

  Gen. Assemb., 1st Sess. (Mar. 21 & Apr. 18, 1979). In other words,

  unlike with other offenses involving minors as victims, child

  prostitution carries with it an enhanced possibility that the minor

  will not appear to be a minor, and so to allow mistake of age to be a

  defense to such offenses risks losing protection for a substantial

  portion of the protected class of victims.

¶ 49   We therefore reject Maloy’s equal protection argument.




                                    25
                             b.   Due Process

¶ 50   Maloy also argues that applying section 18-7-407 rather than

  the more general section 18-1-503.5(1) violates his substantive due

  process rights because it creates a strict liability offense. Again, we

  don’t agree.

¶ 51   At the outset, we note that barring a defendant from raising

  the affirmative defense of reasonable mistake of age does not

  transform any of the child prostitution offenses into strict liability

  offenses. A strict liability offense contains no culpable mental state

  requirement — that is, a defendant’s conduct is criminalized

  regardless of whether the defendant acted with any particular mens

  rea. See People v. Ellison, 14 P.3d 1034, 1038 (Colo. 2000). Maloy

  is correct that strict liability crimes tend to be public welfare

  offenses — like speeding, see People v. Caddy, 189 Colo. 353, 355,

  540 P.2d 1089, 1091 (1975), or public indecency, see People v.

  Hoskay, 87 P.3d 194, 198 (Colo. App. 2003) — and often carry

  lower penalties than other crimes. But he’s not correct that the

  child prostitution statutes are strict liability crimes merely because

  defendants can’t present an affirmative defense to the age element.

  Inability to defend against one element of a crime through an


                                     26
  affirmative defense doesn’t mean the entire offense lacks any mens

  rea.10

¶ 52   And we aren’t persuaded by Maloy’s apparent argument that

  even making the age element “strict liability” violates his right to

  due process. As with equal protection, we review substantive due

  process claims that don’t implicate a fundamental right under the

  rational basis test: the state must “demonstrate that the legislation

  bears some reasonable relationship to a legitimate governmental

  interest.” People v. Young, 859 P.2d 814, 818 (Colo. 1993). As

  discussed, preventing defendants from using the mistake of age

  affirmative defense bears a reasonable relationship to the

  government’s interest of protecting minors from psychological and

  sexual trauma associated with child prostitution.

                  C.    Jury Instructions on Complicity

¶ 53   Next, Maloy contends that the district court erred by refusing

  to give the jury his tendered instructions relating to complicity. We

  disagree.


  10The People correctly point out that the relevant offenses include,
  explicitly or implicitly, the mental state of “knowingly” or with intent
  as to the conduct proscribed. See §§ 18-7-404(1)(a), -405,
  -405.5, -406(1), C.R.S. 2019.

                                    27
              1.    Applicable Law and Standard of Review

¶ 54   A district court “has substantial discretion in formulating the

  jury instructions, so long as they are correct statements of the law

  and fairly and adequately cover the issues presented.” People v.

  Nerud, 2015 COA 27, ¶ 35 (quoting People v. Gallegos, 226 P.3d

  1112, 1115 (Colo. App. 2009)). We review jury instructions de novo

  to determine whether a particular instruction accurately informed

  the jury of the governing law. Riley v. People, 266 P.3d 1098, 1092

  (Colo. 2011). If it did, we review for an abuse of discretion a district

  court’s decision whether to give the particular instruction. See

  People v. Stellabotte, 2016 COA 106, ¶ 18, aff’d on other grounds,

  2018 CO 66. A court abuses its discretion if its decision is

  manifestly arbitrary, unreasonable, or unfair, or based on a

  misapplication of the law. Id.

                          2.    Additional Facts

¶ 55   The district court instructed the jurors on complicity, telling

  them that “it is a legal theory by which one person may be found

  guilty of a criminal offense that was committed in whole or in part

  by another person,” and providing them with a list of elements the




                                     28
  prosecution was required to prove to show that Maloy was guilty as

  a complicitor:

            To be found guilty as a complicitor, the
            prosecution must prove each of the following
            circumstances beyond a reasonable doubt:

            l. A crime must have been committed.

            2. Another person must have committed all or
            part of the crime.

            3. The defendant must have had knowledge
            that the other person intended to commit all or
            part of the crime.

            4. The defendant must have had the intent to
            promote or facilitate the commission of the
            crime.

            5. The defendant must have aided, abetted,
            advised, or encouraged the other person in
            planning or committing the crime.

            Your decision need not be unanimous as to
            whether the defendant acted as principal or
            complicitor with respect to any particular
            crime charged, as long as each of you is
            satisfied, beyond a reasonable doubt, that the
            defendant acted as either principal or
            complicitor with respect to that particular
            charge.

¶ 56   Maloy also tendered three instructions related to complicity:




                                   29
           “Guilt by association and mere presence at the scene of a

            crime do not amount to proof, by themselves, that the

            accused himself was a part of that crime.”

           “Mere knowledge of prostitution is not a crime.”

           “An individual does not have a legal duty to stop the

            commission of prostitution.”

  The district court rejected each instruction, ruling that the other

  instructions adequately covered these concepts.

                              3.   Analysis

¶ 57   Maloy doesn’t challenge the accuracy of the district court’s

  complicity instruction; rather, he contends only that the court

  should have given his additional instructions because they were

  legally accurate, appropriate given the evidence, and not

  encompassed in the court’s other instructions.

¶ 58   But a court has no obligation to give the jury specific

  instructions, even if they are legally accurate and appropriate given

  the evidence. Cf. People v. Paglione, 2014 COA 54, ¶ 48 (court

  didn’t abuse its discretion by removing “If you entertain a

  reasonable doubt regarding this issue you must return a verdict of

  Not Guilty” from the defendant’s theory of the case instruction; that


                                    30
  statement was already encompassed in a separate burden of proof

  instruction). And in this case, the district court correctly

  determined that the other instructions already covered the concepts

  in Maloy’s tendered instructions. Each of Maloy’s tendered

  instructions conveyed concepts that are at least implied, if not

  explicit, in the court’s complicity instruction. Maloy could not be

  found guilty based on mere knowledge and presence if, as the

  court’s complicity instruction required, the jury found that he

  intended to promote or facilitate the commission of the crime and

  he aided, abetted, advised, or encouraged the other person in

  planning or committing the crime.

                     D.    Prosecutorial Misconduct

¶ 59   Last, Maloy contends that the prosecutor committed

  misconduct by (1) referring to him as the “protection,” the “muscle,”

  and the “enforcer” despite a lack of evidence that he fit those

  descriptions; (2) referencing M.C.’s trauma; and (3) saying “there’s

  no other evidence that [Maloy’s] been living anywhere [other than

  with Sykes].” We aren’t persuaded.




                                    31
              1.   Standard of Review and Applicable Law

¶ 60   We use a two-step analysis to review claims of prosecutorial

  misconduct: we determine whether the prosecutor’s conduct was

  improper based on the totality of circumstances, and, if so, we

  determine whether reversal is warranted under the appropriate

  standard of review. Wend v. People, 235 P.3d 1089, 1096-97 (Colo.

  2010). Because Maloy’s counsel didn’t object at trial to any of the

  prosecutor’s statements, we will reverse only if any error was plain.

  See Hagos, ¶ 14; Domingo-Gomez v. People, 125 P.3d 1043, 1053

  (Colo. 2005).

¶ 61   “[A] prosecutor, while free to strike hard blows, is not at liberty

  to strike foul ones.” Domingo-Gomez, 125 P.3d at 1048 (quoting

  Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)). A prosecutor

  should not “intentionally misstate the evidence or mislead the jury

  as to the inferences it may draw.” Id. at 1049 (quoting ABA

  Standards for Criminal Justice: Prosecution Function and Defense

  Function § 3-5.8 (3d ed. 1993)). But a prosecutor “has wide

  latitude to make arguments based on facts in evidence and

  reasonable inferences drawn from those facts.” People v. Strock,

  252 P.3d 1148, 1153 (Colo. App. 2010); see Domingo-Gomez, 125


                                    32
  P.3d at 1048. Accordingly, prosecutorial misconduct does not

  amount to plain error unless it is “flagrant or glaringly or

  tremendously improper[.]” Strock, 252 P.3d at 1152 (quoting People

  v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004)).

                              2.    Analysis

¶ 62   We conclude that none of the prosecutor’s statements to which

  Maloy points constituted misconduct.

¶ 63   First, the prosecutor’s comments during closing argument that

  Maloy was the “protection,” the “muscle,” and the “enforcer”

  reflected the prosecution’s theory of how Maloy was involved in

  M.C.’s prostitution and were reasonable inferences one could draw

  from the evidence. For example, the jury heard testimony that M.C.

  thought Maloy was “scary” and that he threatened her and took

  some of the money she had collected.

¶ 64   Second, we aren’t persuaded that the prosecutor’s reference to

  M.C.’s trauma was misconduct. During rebuttal, the prosecutor

  argued,

             Members of the jury, I’m going to ask you, go
             back, take time to go through all of the
             evidence, take time to figure out, is there just
             one way that a child is supposed to respond to
             sexual trauma? Is she absolutely supposed to


                                    33
            cry every time she talks about it, or perhaps is
            there more than one way to deal with that
            trauma. And perhaps — did you observe the
            way that [M.C.] is still having to deal with that
            trauma? And it was at the hands of the
            defendant.

¶ 65   While there was no direct evidence that M.C. suffered trauma,

  reasonable jurors could have inferred that M.C. would have

  experienced trauma based on the evidence presented. And in

  context, the prosecutor wasn’t pointing this out to ask the jurors to

  render a verdict based on their sympathy for M.C.,11 but rather to

  explain M.C.’s demeanor and to counter the defense attorney’s

  attacks on her demeanor and credibility.

¶ 66   Third, the prosecutor’s statement that “there’s no other

  evidence that [Maloy’s] been living anywhere else” wasn’t improper.

  Maloy argues that the prosecutor misstated the evidence because a

  witness testified that Maloy split his time between different

  locations. But taken in context, the statement wasn’t misleading




  11Such arguments are improper. A prosecutor may not encourage
  the jury to “depart from its duty to decide the case on the evidence”
  by appealing to sympathy for the victim. People v. Leyba, 2019
  COA 144, ¶ 58 (quoting People v. Dunlap, 975 P.2d 723, 759 (Colo.
  1999)).

                                    34
and was a reasonable inference to draw from the evidence. The

prosecutor explained that,

          [w]hen they get back to the apartment,
          Apartment 416, [Maloy] walks in freely. This is
          his apartment too. He did not have to be on
          the lease for it to be his apartment. He’s
          coming and going as he pleases. He spends
          the night. He wakes up in the morning.
          [Sykes] says he’s been living there. There’s no
          other evidence that he’s been living anywhere
          else.

          And so now he’s recruited her and brought her
          back to this apartment, and [Sykes] is going to
          train and teach her . . . .

The prosecutor’s apparent purpose was to explain to the jury that

Maloy spent a lot of time at Sykes’s apartment and treated it like

his home — that he was there a lot, and therefore aware of and

involved in the prostitution. Although a witness testified that Maloy

also spent nights in other places during June of 2014, it wasn’t

unreasonable for the prosecutor to draw the inference from the rest

of the evidence that Maloy didn’t “live” anywhere else. But even if

that statement were somehow misleading, it wasn’t so “flagrant or

glaringly or tremendously improper” that we must reverse Maloy’s

conviction.




                                 35
                           III.   Conclusion

¶ 67   We vacate Maloy’s conviction and sentence on count 4

  (patronizing a prostituted child). The judgment is otherwise

  affirmed.

       JUDGE HARRIS and JUDGE BROWN concur.




                                   36
