v. Ross
2019 COA 79
Colo. Ct. App.2019Background
- Defendant Phillip L. Ross texted persons who had placed online ads for sex; two advertisers were under 18 but advertised ages of 19–20; defendant admitted soliciting sex and said he thought they were adults.
- Prosecutor charged four counts of soliciting for child prostitution (§ 18-7-402): two counts (one per girl) for solicitation and two for arranging/offering to arrange a meeting.
- After the prosecution rested, defense moved for judgment of acquittal arguing the prosecution failed to prove the requisite mental state (that defendant solicited "for the purpose of" child prostitution).
- Trial court concluded § 18-7-407 (no defense that defendant did not know child’s age) bars age-defenses but does not eliminate the prosecution’s burden to prove the defendant’s intent to solicit for child prostitution; acquitted two counts naming the second girl for lack of evidence of intent and submitted lesser-offense soliciting-for-prostitution instructions to the jury.
- Jury hung on child-prostitution counts; prosecutor sought mistrial. Case later resolved by plea to two misdemeanor soliciting counts; prosecution appealed legal rulings under § 16-12-102(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. What mens rea does the phrase "for the purpose of" in § 18-7-402(1) convey? | "For the purpose of" does not supply specific intent; prior case law (Emerterio) treated soliciting-for-child-prostitution as general intent/knowing. | The phrase requires specific intent (i.e., the conscious objective to solicit for child prostitution). | The phrase "for the purpose of" denotes specific intent (equivalent to "intentionally"). |
| 2. Does § 18-7-407 eliminate the prosecution’s obligation to prove intent or make solicitation for child prostitution strict liability as to victim's age? | § 18-7-407 prevents age-based defenses, so prosecution need only prove solicitation and that the person was under 18 (no mens rea regarding age required). | § 18-7-407 only bars defenses about the defendant’s belief as to age; it does not relieve the prosecution of proving the defendant’s specific intent to solicit for child prostitution. | § 18-7-407 does not convert the offense into strict liability; the prosecution must still prove the defendant’s specific intent to solicit for child prostitution (the victim’s age is not itself an element). |
| 3. May a trial court instruct the jury on the lesser included offense of soliciting for prostitution (§ 18-7-202) when defendant is charged with soliciting for child prostitution? | Because the child’s age was undisputed and § 18-7-407 bars age defenses, there is no rational basis to acquit of the greater offense and convict of the lesser. | The critical distinction between the offenses is defendant’s intent; a jury could rationally find no specific intent to solicit a child and thus convict on the lesser offense. | The court did not abuse its discretion in giving the lesser-offense instruction; a rational basis existed for acquittal of the greater and conviction of the lesser. |
Key Cases Cited
- People v. Emerterio, 819 P.2d 516 (Colo. App. 1991) (earlier division treated soliciting-for-child-prostitution as requiring a "knowing" mens rea)
- People v. San Emerterio, 839 P.2d 1161 (Colo. 1992) (supreme court decision referencing the Emerterio appeal)
- People v. Mason, 642 P.2d 8 (Colo. 1982) (solicitation complete upon solicitation or offer to arrange meeting; focus on initial solicitation)
- People v. Vigil, 127 P.3d 916 (Colo. 2006) (analysis of whether "for the purposes" language implies specific intent vs. "knowing")
- People v. Collie, 995 P.2d 765 (Colo. App. 1999) (circumstantial evidence may prove defendant’s intent)
- People v. Frysig, 628 P.2d 1004 (Colo. 1981) ("purpose" in criminal attempt statute equated with "intent")