     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
                                                                 May 23, 2019

                                2019COA79

No. 17CA0204, People v. Ross — Crimes — Solicitation for
Child Prostitution; Criminal Law — Mens Rea

     A division of the court of appeals approves two rulings made

by the trial court and, in the process, reaches three conclusions

about the crime of soliciting for child prostitution, § 18-7-402,

C.R.S. 2018. First, the division concludes that the crime is a

specific intent crime, disagreeing with the conclusion in People v.

Emerterio, 819 P.2d 516, 518-19 (Colo. App. 1991), rev’d on other

grounds sub nom. People v. San Emerterio, 839 P.2d 1161 (Colo.

1992), which determined that it was a general intent crime.

Second, the division concludes that section 18-7-407, C.R.S. 2018,

does not act to relieve the prosecution of its obligation to prove that

the defendant solicited another for the purpose of child prostitution.
Third, the division concludes that the same statute did not prevent

the trial court from instructing the jury on the lesser crime of

soliciting for prostitution, § 18-7-202, C.R.S. 2018.
COLORADO COURT OF APPEALS                                          2019COA79


Court of Appeals No. 17CA0204
City and County of Denver District Court No. 15CR5842
Honorable Andrew P. McCallin, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Phillip L. Ross,

Defendant-Appellee.


                             RULINGS APPROVED

                                   Division VII
                       Opinion by CHIEF JUDGE BERNARD
                         Márquez* and Vogt*, JJ., concur

                            Announced May 23, 2019


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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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




                                    1
 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.


                                     2
 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


                                     3
  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




                                       4
  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




                                     5
  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 child prostitution.” It

  then entered a judgment of acquittal on the two counts naming the

  second girl, but it denied the motion on the two counts naming the

  first girl.

¶ 17    During the instruction conference, defense counsel asked the

  court to instruct the jury on the lesser offense of soliciting for

  prostitution under section 18-7-202(1)(a) and (b). As the basis for

  this request, counsel asserted that the jury could conclude that


                                      6
  defendant’s “purpose here was to solicit an adult prostitute,” not a

  child prostitute.

¶ 18   The prosecutor objected. She replied that giving the

  instruction would violate section 407 by allowing defendant to rely

  on defenses that section 407 expressly prohibited.

¶ 19   The trial court again agreed with the defense, reading the

  soliciting for child prostitution statute to require the prosecution to

  show that “the defendant intended to solicit a child for prostitution.”

  (Emphasis added.) Later, it ruled that the prosecution “must show

  some mental state, that what the defendant was doing was

  arranging or soliciting a prostitute for purposes of child

  prostitution.” (Emphasis added.) It later instructed the jury as

  defense counsel had requested.

¶ 20   The jury hung on the soliciting for child prostitution counts.

  But it told the court that it could reach a unanimous decision on

  the lesser counts. Rather than accept the verdicts on the lesser

  counts, the prosecutor asked the court to declare a mistrial. It did.

¶ 21   Before the retrial on the remaining counts, the prosecution

  sought our supreme court’s review via an original proceeding under

  C.A.R. 21. The supreme court denied this request.


                                     7
¶ 22   The prosecution then offered to resolve this case by way of a

  plea disposition. Defendant accepted, pleading guilty to two

  misdemeanor counts of soliciting another for prostitution.

¶ 23   Relying on section 16-12-102(1), C.R.S. 2018, which allows

  the prosecution to appeal “any question of law,” the prosecution

  filed this appeal.

                                 III. Analysis

¶ 24   The prosecution asserts that the trial court was mistaken

  when it decided that, to prove the crime of soliciting for child

  prostitution, the prosecution had to show that the person whom “he

  was soliciting was a child.” The court, the prosecution continues,

  should have instead applied section 407. This means that the

  prosecution only had to prove that defendant had knowingly

  solicited a prostitute and that this person was under eighteen years

  old. In other words, the prosecution contends that, because of

  section 407, the prosecution did not have to prove that defendant

  had any culpable mental state in connection with the solicited

  person’s age: as far as that element is concerned, soliciting for child

  prostitution is a strict liability crime.




                                       8
¶ 25    But we respectfully disagree with the prosecution’s

  characterization of what the trial court did. Rather, after reviewing

  the transcript, we agree with defendant’s description of the court’s

  ruling: the court did not dismiss the two soliciting for child

  prostitution charges naming the second girl because defendant did

  not know that she was a child, but because there was no evidence

  presented at trial that would have allowed the jury to find that he

  had solicited her for the purpose of child prostitution. Looking at

  the court’s rulings from this perspective, we conclude that the court

  did not err when it (1) granted defendant’s motion for a judgment of

  acquittal on two of the soliciting for child prostitution counts; and

  (2) instructed the jury on the lesser offense of soliciting for

  prostitution.

         A.    What Does the Phrase “for the [P]urpose of [Child
                 Prostitution]” in Section 18-7-402(1) Mean?

   1.   Standard of Review and Principles of Statutory Interpretation

¶ 26    We review issues of statutory interpretation de novo. People v.

  Ortiz, 2016 COA 58, ¶ 15. When we interpret statutes, we must

  ascertain and give effect to the legislature’s intent. Colo. Dep’t of

  Revenue v. Creager Mercantile Co., 2017 CO 41M, ¶ 16. In doing so,



                                      9
  “[w]e give effect to words and phrases according to their plain and

  ordinary meaning[s].” Denver Post Corp. v. Ritter, 255 P.3d 1083,

  1089 (Colo. 2011). But, “[w]ords and phrases that have acquired a

  technical or particular meaning . . . [are] construed accordingly.”

  § 2-4-101, C.R.S. 2018. If a statute’s language is clear, we apply it

  as the legislature wrote it. Denver Post Corp., 255 P.3d at 1089.

                         2.    People v. Emerterio

¶ 27   Normally, a defendant must act with a culpable mental state

  to be criminally liable. See Gorman v. People, 19 P.3d 662, 665

  (Colo. 2000). A division of this court has held that the culpable

  mental state for the crime of soliciting for child prostitution is

  “knowingly.” People v. Emerterio, 819 P.2d 516, 518-19 (Colo. App.

  1991), rev’d on other grounds sub nom. People v. San Emerterio, 839

  P.2d 1161 (Colo. 1992). The division decided that “[t]he gist of the

  crime of solicitation is that the defendant is aware of what he is

  doing.” Id. So “knowingly,” and not “intentionally,” as the

  defendant had argued, was the proper culpable mental state. Id.

  The division therefore concluded that the court did not commit

  plain error when it “instructed the jury that the requisite mens rea

  was that of ‘knowingly.’” Id.


                                     10
             3.   “[F]or the [P]urpose of [Child Prostitution]”

¶ 28   But there now appears to be a debate about the application of

  the “knowing” culpable mental state to the crime of soliciting for

  child prostitution. When the division decided Emerterio, the

  relevant model jury instruction, CJI-Crim. 24:03 (1983), read that

  the culpable mental state was “knowingly.”

¶ 29   The Colorado Supreme Court Model Criminal Jury

  Instructions Committee recently altered this position, writing that it

  “is of the view that section 18-7-402(1)(a) describes a culpable

  mental state by requiring that the solicitation be for the purpose of

  child prostitution.” COLJI-Crim. 7-4:01 cmt. 3 (2018); see also

  People v. Ramos, 2017 COA 100, ¶ 20 (“While we are not bound by

  the model jury instructions, they are persuasive.”). As a result, the

  model jury instruction for soliciting for child prostitution “does not

  supplement the statutory language by imputing the [culpable

  mental state] of ‘knowingly.’” COLJI-Crim. 7-4:01 cmt. 3 (emphasis

  added).

¶ 30   We conclude, for the following reasons, that the phrase “for

  the purpose of” is the equivalent of “intentionally.”




                                    11
¶ 31   First, “purpose” means “[a]n objective, goal, or end.” Black’s

  Law Dictionary 1431 (10th ed. 2014). The word “purposeful” means

  “[d]one with a specific purpose in mind; deliberate.” Id. A person

  acts with specific intent in Colorado when she acts “intentionally” or

  “with intent,” meaning that one’s “conscious objective is to cause

  the specific result proscribed by the statute defining the offense.”

  § 18-1-501(5), C.R.S. 2018. These definitions correspond. For

  example, to act “intentionally” means that one has a conscious

  objective to cause a specific result; a purpose is one’s objective; and

  being “purposeful” means that one acts with such an objective in

  mind.

¶ 32   Second, the culpable mental states in the Colorado Criminal

  Code are based on the Model Penal Code. See People v. Derrera,

  667 P.2d 1363, 1366-67 (Colo. 1983). And, in the Model Penal

  Code, the highest level of criminal culpability is “purposely.” Model

  Penal Code § 2.02(2)(a) (Am. Law Inst., Official Draft and Revised

  Comments 1985).

¶ 33   “Purposely” means “with a deliberate or an express purpose:

  on purpose: INTENTIONALLY, DESIGNEDLY, EXPRESSLY.”

  Webster’s Third New International Dictionary 18a, 1847 (2002) (“A


                                    12
  cross-reference [in capital letters] following a symbolic colon is a

  synonymous cross-reference.”). The meaning of this adverb is

  predictably related to the meanings of the noun “purpose” and the

  adjective “purposeful.”

¶ 34   The Model Penal Code’s definition of “purposely” is comparable

  to Colorado’s definition of “intentionally.” As is pertinent to our

  analysis, the Code reads that “[a] person acts purposely” when with

  respect to the nature or the result of his conduct, “it is his

  conscious object to engage in conduct of that nature or to cause

  such a result.” Model Penal Code § 2.02(2)(a). Indeed, the Code

  expressly equates the terms “purposely” and “intentionally”:

  “‘intentionally’ or ‘with intent’ means purposely.” Model Penal Code

  § 1.13(12). From the perspective of the drafters of the Code, “[t]his

  difference” between “intentionally and purposely” is “one of

  terminology alone.” Id. § 2.02 cmt. 2, n.11.

¶ 35   Although section 407 uses a noun — the word “purpose” in

  the phrase “for the purpose of” — authority defining the adverb

  “purposely” is helpful in determining the meaning of the phrase “for

  the purpose of.” See Schmuck v. State, 406 P.3d 286, 301 (Wyo.

  2017)(Either the noun “malice” or the adverb “maliciously” “will


                                     13
  convey the same underlying meaning.”); Roget’s International

  Thesaurus, § 653.9-.11, at 501 (4th ed. 1977)(“intentionally,”

  “purposely,” “with purpose,” “purposeful,” and “on purpose” are

  synonyms).

¶ 36   In the context of culpable mental states, the congruity between

  the two terms is borne out by decisions from courts in other

  jurisdictions, which have construed the adverb “purposely” and the

  phrase “for the purpose of” to mean much the same thing. Compare

  United States v. Bailey, 444 U.S. 394, 405 (1980)(“In a general

  sense, ‘purpose’ corresponds loosely with the common-law concept

  of specific intent . . . .”), and United States v. Esch, 832 F.2d 531,

  536 (10th Cir. 1987)(same), and United States v. Wright, No. 1:12-

  CR-130, 2013 WL 164096, at *7 (W.D. Mich. Jan. 15, 2013)(“‘For

  the purpose of’ means that the defendant acted with the specific

  intent of creating visual depictions of sexually explicit conduct.”),

  aff’d, 774 F.3d 1085 (6th Cir. 2014), and People v. Hering, 976 P.2d

  210, 213 (Cal. 1999)(the phrase “for the purpose of” “denot[es]

  specific intent crimes”), with State v. Goebel, 83 S.W.3d 639, 644

  (Mo. Ct. App. 2002)(“purposely” is defined as “intentional”), and

  State v. Williams, 503 N.W.2d 561, 566 (Neb. 1993)(“In the context


                                     14
  of a criminal statute, ‘intentionally’ means . . . purposely . . . .”),

  and State v. Holmes, 920 A.2d 632, 634 (N.H. 2007)(“[T]he Criminal

  Code generally uses the term ‘purposely’ in place of specific

  intent . . . .”), and State v. Huff, 763 N.E.2d 695, 701 (Ohio Ct. App.

  2001)(The definition of “purposely” “require[s] the offender to have

  the specific intent to cause a certain result.”). At least one

  commentator has treated the adverb and the phrase

  interchangeably. 1 Wayne R. LaFave, Substantive Criminal Law

  § 5.1(a), at 333 (2d ed. 2003).

¶ 37   Third, our supreme court has, in other contexts, interpreted

  the word “purpose” to mean “intent.” In People v. Frysig, 628 P.2d

  1004, 1010 (Colo. 1981), the court observed that “the word

  ‘purpose’ as used in the criminal attempt statute is the equivalent

  of the common meaning of the word ‘intent.’” In People v. Childress,

  2015 CO 65M, ¶ 21, the court recognized that the Model Penal Code

  described the “most culpable[] mental state giving rise to criminal

  liability” as “purposely” rather than as “intentionally.”

¶ 38   Fourth, courts in other jurisdictions view “intentionally” and

  “purposely” as synonyms when discussing culpable mental states.

  See, e.g., United States v. Rose, 896 F.3d 104, 112 (1st Cir.


                                      15
  2018)(“In the context of criminal law, ‘intentionally’ can be

  synonymous with ‘purposely . . . .’”); United States v. Gracidas-

  Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000)(“In general, ‘purpose’

  corresponds to the concept of specific intent . . . .”).

                            4.    People v. Vigil

¶ 39   We are not persuaded that People v. Vigil, 127 P.3d 916 (Colo.

  2006), dictates a different result. Vigil addressed whether the crime

  of sexual assault on a child, described in section 18-3-405(1),

  C.R.S. 2018, when combined with the definition of “sexual contact,”

  found in section 18-3-401(4), C.R.S. 2018, creates an intentional

  culpable mental state requirement or a knowing one.

¶ 40   On the “intentional” side of the scale was the definition of

  “sexual contact,” which is the “knowing touching of the victim’s

  intimate parts by the actor . . . if that sexual contact is for the

  purposes of sexual arousal, gratification, or abuse.” § 18-3-401(4)

  (emphasis added). The supreme court observed that the “for the

  purposes” language “suggest[ed] that the offense require[d] specific

  intent.” Vigil, 127 P.3d at 931.

¶ 41   On the “knowing” side of the scale, the court pointed to the

  use of the terms “knowing” or “knowingly” in both sections


                                      16
  18-3-401(4) and 18-3-405(1). It also described statements by

  legislators who discussed the reasons for inserting those terms.

  Vigil, 127 P.3d at 932-33.

¶ 42     The court then concluded that the factors on the “knowing”

  side of the scale outweighed those on the “intentional” side. The

  legislative history demonstrated that, “when the General Assembly

  inserted the word ‘knowingly’ into the definition of the offense and

  the word ‘knowing’ into the definition of ‘sexual contact,’ its intent

  was to provide a mental-state requirement of general intent.” Id. at

  933.

¶ 43     But the culpable mental state “knowing” does not appear in

  section 18-7-402. So that statute is unlike the statutes discussed

  in Vigil, in which the legislature specifically inserted the terms

  “knowing” and “knowingly.” As the Colorado Supreme Court Model

  Criminal Jury Instructions Committee suggested, this means that

  “for the purpose of” functions as the culpable mental state of the

  crime of soliciting for child prostitution. COLJI-Crim. 7-4:01

  cmt. 3.




                                     17
                         5.    Emerterio Revisited

¶ 44    Where does this leave Emerterio? We are not bound by its

  holding. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App.

  2008)(one division of the court of appeals is not bound by another’s

  decision). We respectfully disagree with the Emerterio division’s

  observation that the crime of soliciting for child prostitution “fails to

  specify the requisite [culpable mental state] for the commission of

  this offense.” 819 P.2d at 518. Rather, as we have demonstrated

  above, the culpable mental state of specific intent is found in the

  phrase “for the purpose of.” Interestingly, the Emerterio division did

  not address what effect the “for the purpose of” language might

  have had on the applicable culpable mental state.

¶ 45    We now turn to the prosecution’s contention that section 407

  “forecloses” us from concluding that any culpable mental state

  “applies to the element that the victim is a child.”

   B.   What Effect Does Section 407 Have on the Crime of Soliciting
                          for Child Prostitution?

¶ 46    Having determined that the crime of soliciting for child

  prostitution is a specific intent crime, we necessarily reject the




                                     18
  prosecution’s contention that it is a strict liability crime as far as

  the victim’s age is concerned.

¶ 47   Looking to the plain language of the crime of soliciting for

  child prostitution, neither the victim’s actual age nor the

  defendant’s knowledge of, or belief concerning, the victim’s age is an

  element of the crime. “The focus of the crime is,” instead, “the

  initial solicitation” or arrangement, and the defendant’s

  accompanying intent, not “the ultimate sexual act which might

  occur.” Emerterio, 819 P.2d at 518. The crime is therefore

  complete when the defendant solicits another or arranges or offers

  to arrange a meeting with the specific intent of engaging in child

  prostitution. See People v. Mason, 642 P.2d 8, 13 (Colo. 1982)(the

  crime of soliciting for prostitution “is complete when the offender

  solicits another for prostitution, [or] arranges or offers to arrange a

  meeting of persons for the purpose of prostitution”).

¶ 48   To satisfy its burden, the prosecution must present evidence

  that the defendant had the specific intent of soliciting for child

  prostitution. Evidence that the defendant knew, or should have

  known, that the person he was soliciting was underage could be

  circumstantial evidence that his purpose was to engage in child


                                     19
  prostitution. See People v. Collie, 995 P.2d 765, 773 (Colo. App.

  1999)(evidence of the defendant’s intent is often proved by

  circumstantial or indirect evidence). Such evidence is not

  necessarily difficult to come by. As the Roman historian Livy once

  wrote, “Dishonest dealing, even if at the beginning it has been

  somewhat cautious, generally betrays itself in the long run.” Titus

  Livius, The History of Rome, Vol. 6, 44.15 (Rev. Canon Roberts

  trans., J.M. Dent & Sons, Ltd., London 1905).

¶ 49   We therefore conclude, echoing the trial court, that section

  407 and the crime of soliciting for child prostitution work together

  in the following way. Section 407 prevents a defendant from raising

  the defense that he believed that the prostitute was of legal age, but

  it does not relieve the prosecution of its obligation to prove that the

  defendant’s specific intent was to solicit another, or to arrange or to

  offer to arrange a meeting, “for the purpose of child prostitution.”

  As a result, the trial court applied the proper legal standard when it

  decided to dismiss the two soliciting for child prostitution counts

  naming the second girl.




                                     20
¶ 50      We now turn to the question whether the trial court erred

  when it instructed the jury during defendant’s trial about the lesser

  offense of soliciting for prostitution.

          C. 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?

¶ 51      The prosecution contends that the trial court erred when it

  instructed the jury on the lesser offense of soliciting for

  prostitution. § 18-7-202(1)(a)-(b). We disagree.

¶ 52      We review a trial court’s decision to instruct a jury on a lesser

  offense for an abuse of discretion. People v. Jimenez, 217 P.3d 841,

  870 (Colo. App. 2008). A court may abuse its discretion in

  instructing the jury if its decision is based on a misunderstanding

  or misapplication of the law. People v. Smalley, 2015 COA 140,

  ¶ 59.

¶ 53      A defendant is entitled to an instruction about a lesser offense

  if “there is a rational basis for a verdict acquitting the defendant of

  the offense charged and convicting him of the included offense.”

  § 18-1-408(6), C.R.S. 2018. A trial court need not give a lesser

  included offense instruction “if the element that distinguishes the



                                       21
  greater from the lesser offense is uncontested [because] the jury

  cannot rationally acquit the defendant of the greater offense and

  convict him . . . of the lesser.” People v. Hall, 59 P.3d 298, 299-300

  (Colo. App. 2002).

¶ 54   The general crime of soliciting another for prostitution and the

  specific crime of soliciting for child prostitution set forth the same

  means to commit those respective crimes: (1) soliciting another; or

  (2) arranging or offering to arrange a meeting of persons. The

  difference lies in the defendant’s purpose — whether the defendant

  intended to solicit a child for prostitution.

¶ 55   The prosecution asserts that, because it was uncontroverted

  that the girls in this case were under eighteen years old, there was

  no rational basis for the jury in this case to acquit defendant of

  soliciting for child prostitution and convict him of soliciting for

  prostitution. And, the prosecution continues, because defendant

  could not claim ignorance of the age of the first girl, who had

  appeared in the photograph, under section 407, the court should

  not have instructed the jury about the lesser offense of soliciting for

  prostitution. In other words, the prosecution submits that the

  difference between these two offenses lies in the age of the person


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  solicited. We disagree because, as we have concluded above, the

  focus of the crime of soliciting for child prostitution is on the

  defendant’s intent, not on the age of the person solicited.

¶ 56   We therefore conclude that the trial court did not abuse its

  discretion when it instructed the jury on the offense of soliciting for

  prostitution because the court did not misunderstand or misapply

  the law. See Smalley, ¶ 59; Jimenez, 217 P.3d at 870. The jury

  could have rationally acquitted defendant of the greater offense of

  soliciting for child prostitution if it had found that he did not intend

  to solicit a child. And the jury could have rationally found him

  guilty of the lesser offense of soliciting for prostitution if it had

  found that his intent was merely to solicit another for prostitution.

¶ 57   The trial court’s rulings are approved.

       JUDGE MÁRQUEZ and JUDGE VOGT concur.




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