Deshawn Lynn RANDOLPH, Petitioner, v. The PEOPLE of the State of Colorado., Respondent.
Supreme Court Case No. 23SC167
Supreme Court of Colorado
June 23, 2025
570 P.3d 1022
Attorneys for Petitioner: Megan A. Ring, Public Defender, Andrea R. Gammell, Deputy Public Defender, Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado
En Banc
JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER joined.
JUSTICE SAMOUR delivered the Opinion of the Court.
¶1
¶2 But alas, we ultimately declined to address the culpable mental state question in Ross II because the answer didn‘t impact the outсome of the prosecution‘s appeal. Id. at ¶ 26, 479 P.3d at 916. Therefore, in the exercise of judicial restraint, we left the “dispute for another day.” Id. That day is today.
¶3 Although we haven‘t spoken on the issue before, we do not stand on fallow ground. The court of appeals has wrestled with the applicable culpable mental state in
¶4 At long last, the time has come to settle the dust. We now hold that the culpable mental state of soliciting for child prostitution under subsections (1)(a) and (1)(b) is knowingly (the same culpable mental state expressly designated in
I. Facts and Procedural History
¶5 As pertinent here, Randolph was charged with two counts of soliciting for child prostitution, in violation of subsections (1)(a) and (1)(b). The former proscribes soliciting another “for the purpose of prostitution” of or by a child, and the latter proscribes arranging (or offering to arrange) a meeting of persons “for the purpose of prostitution” of or by a child.
¶6 The charges arose from a series of exchanges Randolph had with an investigator from the Arapahoe County Sheriff‘s Office who had created a fake profile by the name of “Nicole” on a social networking platform that‘s often used to recruit girls into a life of prostitution. Randolph offered to arrange sex work for Nicole even though she had told him she was just shy of her eighteenth birthday.
¶7 At trial, Randolph‘s theory of defense was that he never actually intended to arrange sex work for Nicole; instead, he asserted that his promises of obtaining sex work for her were nothing but bravado and bluster, meant to string her along until she turned eighteen, at which point he would attempt to have sex with her. Although Randolph acknowledged that such conduct might be morally reprehensible, he argued that it didn‘t amount to soliciting for child prostitution because it was not undertaken “for the purpose of” prostitution of or by a child.
¶8 Consistent with this theory, Randolph proposed a jury instruction that defined the phrase “for the purpose of” as “conduct performed with an anticipated result that is intended or desired.” In support of this definition, he cited Colorado Ethics Watch v. City & County of Broomfield, 203 P.3d 623, 625 (Colo. App. 2009), a civil appeal in which a division of the cоurt of appeals leaned on a dictionary definition of the word “purpose” to define the phrase “for the purpose of.” The district court rejected Randolph‘s tendered instruction. Relying on Emerterio, 819 P.2d at 518, it determined that the applicable mens rea of soliciting for child prostitution was knowingly. And because the proffered instruction could have conveyed to the jury that the applicable mens rea was intentionally, the court refused to give it.
¶9 The jury, therefore, was ultimately instructed as follows regarding the elements of the two soliciting charges:
(1) That Randolph,
(2) in the State of Colorado, at or about the date and place charged,
(3) knowingly,
(4) solicited another3 or arranged or offered to arrange a meeting of persons,4 (5) for the purpose of prostitution of a child or by a child.
The jury found Randolph guilty of both charges, and the district court sentenced him to two concurrent nine-year terms in the Deрartment of Corrections.
¶10 Randolph appealed, arguing, as relevant here, that the district court had improperly instructed the jury regarding the mens rea of the soliciting charges. He maintained that “for the purpose of” was the equivalent of intentionally, and as such, the district court had mistakenly refused to give the jury his proposed instruction. A division of the court of appeals was unpersuaded and affirmed his convictions. People v. Randolph, 2023 COA 7, ¶ 31, 528 P.3d 917, 923. Randolph timely sought our review, and we granted his petition.5
¶11 Before turning to the merits of the parties’ contentions, we consider the standard of review that governs our analysis.
II. Standard of Review
¶12 The
¶13 We review de novo whether a jury instruction is an accurate and clear recitation of the law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). This task requires us to interpret the statute defining the charged offense, which is likewise subject to de novo review. See McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389.
¶14 Our primary purpose when interpreting a statute is to ascertain and give effect to the legislature‘s intent, looking first to the plain and ordinary meaning of the words used. Id. We must read a statute as a whole, aiming to give consistent, harmonious, and sensible effect to all its parts. Id. at ¶ 38, 442 P.3d at 389. A reading that renders any words or phrases in a statute superfluous or leads to an absurd result is disfavored. Id.
¶15 If, based on our interpretation of the relevant statute, we determine that an instruction was a correct and clear statement of the law, we review the trial court‘s decision to give it to the jury for an abuse of discretion. Garcia, ¶ 18, 503 P.3d at 140. When we conclude that a jury instruction was provided in error and that the error was properly preserved, our reversal-determining standard is constitutional harmless error, which requires us to reverse unless the prosecution proves that the error was harmless beyond a reasonable doubt. Id.
III. Analysis
¶16 We begin by setting forth the statute proscribing soliciting for child prostitution. Then, looking back in our rearview mirror, we review Colorado‘s jurisprudence addressing the applicable culpable mental state in subsections (1)(a) and (1)(b). Specifically, we dissect the conflicting decisions from the court of appeals in Emerterio and Ross I. On the heels of that discussion, we explore in some detail the road taken by the division in this case. We proceed to discern the legislature‘s intent and hold that, although subsections (1)(a) and (1)(b) do not explicitly provide a culpable mental state, the legislature meant for knowingly to be the culpable mental state in each of them. Applying that holding here, we conclude that the district court did not err in instructing the jury.
A. The Statute Proscribing Soliciting for Child Prostitution
¶17
(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.
B. Relevant Colorado Jurisprudence (Emerterio vs. Ross I) and the Division‘s Decision in This Case
¶18 Thirty-four years ago, a division of the court of appeals upheld a trial court‘s instruction informing the jury that the applicable culpable mental state in subsection (1)(a) is knowingly. Emerterio, 819 P.2d at 518. The division in Emerterio concluded that, although subsection (1)(a) does not expressly contain a culpable mental state, one is nevertheless required based on the proscribed conduct: “The gist of the crime of solicitation is that the defendant is aware of what he is doing, within the definition of the term ‘knowingly.‘” Id.; see also
¶19 The division‘s decision in Emerterio remained king of the hill in Colorado for many years. Then, in 2019, a different division of the court of appeals threatened its imperium. See Ross I, ¶ 44, 482 P.3d at 458. The Ross I division parted company with Emerterio because it disagreed with the premise that subsection (1)(a) fails to expressly designate a culpable mental state. Id. Instead, reasoned the Ross I division, “for the purpose of” in subsections (1)(a) and (1)(b) supplies the culpable mental state of “specific intent” or “intentionally.” ¶¶ 30, 44, 482 P.3d at 456, 458. Further, the Ross I division was critical of the Emerterio division for not addressing “what effect the ‘for the purpose of’ language might have ... on the applicable culpable mental state.” ¶ 44, 482 P.3d at 458.
¶20 In clearing a different path, the Ross I division noted that there appeared to be a new debate about Emerterio‘s “application of the ‘knowing’ culpable mental state to the crime of soliciting for child prostitution.” ¶ 28, 482 P.3d at 456. Continuing, the division stated thаt the Colorado Supreme Court Model Criminal Jury Instructions Committee (the “Committee“) had done an about-face on its position regarding the applicable culpable mental state in subsections (1)(a) and (1)(b). Id. at ¶ 29, 482 P.3d at 456. In 1991, when Emerterio was announced, the Committee had concluded that knowingly is the applicable culpable mental state in those subsections. Id. at ¶ 28, 482 P.3d at 456 (citing CJI-Crim. 24:03 (1983)). But by 2019, when Ross I was decided, the Committee had changed its tune, writing that it was now of the view that the language of subsections (1)(a) and (1)(b) describes a culpable mental state “by requiring that the solicitation be for the purpose of child prostitution.” Id. at ¶ 29, 482 P.3d at 456 (quoting COLJI-Crim. 7-4:01 cmt. 3 (2018) (“comment 3“)); see also COLJI-Crim. 7-4:02 cmt. 3 (2018).
¶21 The Ross I division was persuaded by comment 3. Like the Committee, it homed in on the phrase “for the purpose of.” It then turned to the
¶22 We granted the prosecution‘s petition for certiorari in Ross II but ultimately declined to resolve the division split, withholding judgment “on the soundness of the division‘s conclusion that the phrase ‘for the purpose of’ in subsections [(1)(a) and (1)(b)] describes the culpable mental state of with intent.” ¶ 6 n.2, 479 P.3d at 913 n.2. We did, however, decide that subsections (1)(a) and (1)(b) require a culpable mental state and
¶24 The Randolph division declined to fall in with Ross I for a handful of reasons. First, although acknowledging the Committee‘s change of heart between 1991, when Emerterio saw the light of day, and 2009, when Ross I came into existence, it pointed out that model jury instructions are not binding law. Id. at ¶ 22, 528 P.3d at 922. Particularly where, as here, the Committee didn‘t cite any authority in support of its position, the division was unwilling to overlook “the fact that the model jury instructions and the accompanying commentary are forged neither in the furnace of the legislative process nor the crucible of the adversarial judicial arеna.” Id.
¶25 Second, the Randolph division rejected Ross I‘s reliance on dictionary definitions instead of the legislature‘s own express definition of “culpable mental state,” which is limited to four mental states—“intentionally,” “knowingly,” “recklessly,” and “criminal negligence“—none of which is “purposely” or “for the purpose of.” Id. at ¶ 23, 528 P.3d at 922;
¶26 Third, the Randolph division disagreed with equating the most culpable mental state in the MPC (purposely) with the most culpable mental state in Colorado‘s Criminal Code (intentionally) because purposely is defined by the MPC so as to include the nature of the conduct, the attendant circumstances, and the result, while intentionally is defined in our Criminal Code only in terms of a result. Randolph, ¶¶ 24-26, 528 P.3d at 922-23. Thus, concluded the division, Ross I erred by considering the two culpable mental states substitutable. Id.
¶27 Fourth, the Randolph division cautioned that treating “for the purpose of” in
¶28 Lastly, the Randolph division observed that, when interpreting other statutes lacking an express designation of the mens rea, this state‘s appellate courts have generally imputed knowingly “in the absence of a clear reason” to impute “a more stringent mental state.” ¶ 30, 528 P.3d at 923 (first citing Gorman, 19 P.3d at 666; then citing People v. Moore, 674 P.2d 354, 358 (Colo. 1984); and then citing People v. Lawrence, 55 P.3d 155, 163 (Colo. App. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004)). The division saw neither a clear reason to impute a more culpable mental state than knowingly nor a basis to treat
¶29 With that background in mind, we are at the moment of truth. Who got it right: Emerterio or Ross I? We conclude that Emerterio did and thus overrule Ross I and affirm the division below. As we explain next, our legislature meant for the culpable mental state of knowingly, which is expressly designated in
C. Discerning the Legislature‘s Intent
¶30 We start at the beginning. In decrypting our legislature‘s pertinent intent, our first order of business is to review some foundational tenets vis-a-vis criminal culpability.
1. Foundational Tenets Regarding Criminal Culpability
[10] ¶31 “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.”
[11] ¶32 When a crime requires proof of a particular culpable mental state, it is “ordinarily designated” in the statute defining the offense by the use of one of the following terms: “intentionally,” “knowingly,” “recklessly,” or “criminal negligence.”
2. The Legislature Did Not Expressly Designate One of the Four Ordinary Culpable Mental States in Subsections (1)(a) and (1)(b)
¶33 Neither
[12] ¶34 Randolph insists, however, that
¶35 We reject Randolph‘s contention. Had the legislature meant to designate “for the purpose of” as the applicable culpable mental state in
[13] ¶36 “Words and phrases,” such as culpable mental state, “that have acquired a technical or particular meaning ... by legislative definition ... shall be construed accordingly.”
¶37 We impliedly recognized in Ross II that the legislature did not sanction “for the purpose of” in
¶38 Significantly, when our General Assembly overhauled the Colorado Criminal Code in 1971, one of its goals was to eliminate the confusion stemming from the wide array of ambiguous terms defining the culpable mental state requirements for criminal offenses. People v. Vigil, 127 P.3d 916, 931 (Colo. 2006). Such terms included “general criminal intent,” “mens rea,” “presumed intent,” “malice,” “willfulness,” and “scienter.” Id. Our General Assembly put an end to the practice of willy-nilly labeling culpable mental states: It proclaimed that, moving forward, a culpable mental state would ordinarily be designated by the terms “intentionally,” “knowingly,” “recklessly,” or “criminal negligence.”
A person acts ”intentionally” or ”with intent” when his conscious objective is to cause the specific result proscribed by the statute defining the offense....
A person acts ”knowingly” or ”willfully” with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts “knowingly” or “willfully,” with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
[14] ¶39 In revamping our Criminal Code, the legislature drew heavily from the MPC, which made its own substantial modifications surrounding the culpable mental state requirements for criminal offenses. See Vigil, 127 P.3d at 931; Model Penal Code § 2.02, at 225-27, 229-30 (Am. L. Inst., Off. Draft and Revised Comments 1985). The MPC, however, designated purposely as the most culpable of four mens rea—the other three being knowledge, recklessness, and negligence. See Model Penal Code § 2.02(2)(a)-(d), at 225-26. Yet, despite being aware of the MPC‘s use of purposely as a culpable mental state, our General Assembly did not incorporate it into our Criminal Code. This was clearly a deliberate choice, and one we must respect. Dep‘t of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012, 1016 (“[W]e must respect the legislature‘s choice of language ....“).
¶40 But not only did our General Assembly deviate from the MPC by using intentionally instead of purposely as the most culpable mental state, it ultimately defined the former more narrowly than the MPC defined the latter. Our General Assembly defined intentionally only in terms of a required result; the MPC, by contrast, defined purposely in terms of conduct, attendant circumstances, and/or a required result:
A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
Model Penal Code § 2.02(2)(a), at 225 (emphases added).
¶41 Hence, the MPC‘s purposely is by no means an analogue of our Criminal Code‘s intentionally. Rather, the MPC‘s most culpable mental state appears to be a hybrid of our Criminal Code‘s intentionally and knowingly.
¶42 The Ross I division was therefore wrong to consider the MPC‘s purposely and our Criminal Code‘s intentionally as fungible. And, relatedly, it was a leap too far for that division to suggest that the General Assembly expressly designated the culpable mental state of intentionally through the phrase “for the purpose of” in
¶43 Our decision in Vigil supports our conclusion that, absent evidence of a contrary legislative intent, “for the purpose of” doesn‘t reflect our legislature‘s designation of the culpable mental state of intentionally. The crime charged there, sexual assault on a child, was defined by two statutory provisions,
¶44 Here, while
[15] ¶45 We may not give thе phrase “for the purpose of” one meaning in
¶46 We now conclude that
3. A Culpable Mental State Must Nevertheless Be Imputed
[16] ¶47 Legislative silence on a culpable mental state “is generally not construed as an indication that no culpable mental state is required.” People v. Naranjo, 200 Colo. 1, 612 P.2d 1099, 1102 (1980). Thus, even where, as here, statutory provisions do not expressly designate a culpable mental state, one may nevertheless be required for the commission of th[e] offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state.”
¶48 The question, then, is whether the conduct proscribed by
[17] ¶49 We reiterate what we said four years ago there: Any assertion that soliciting for child prostitution under either
4. To Impute Intentionally or to Impute Knowingly—That Is the Question
¶50 Our North Star at this juncture of the analysis remains the legislature‘s intent. Turning first to the plain language of
[18, 19] ¶51 Of particular relevance here, however, there is no requirement in
¶52 This conclusion is buoyed by our jurisprudence on the crime of soliciting for prostitution,
[20] ¶53 Given our legislature‘s decision to describe the crime of soliciting for child prostitution without requiring a result, we conclude that the culpable mental state of knowingly fits
[21] ¶54 In stark contrast to the culpable mental state of knowingly, the culpable mental state of intentionally fits like a square peg in a round hole in
[22] ¶55 Because
¶56 Our reasoning in this case may be expressed as follows:
Subsections (l)(a) and (l)(b) proscribe certain conduct when it is accompanied by a particular attendant circumstance, but they do not require a result.- The culpable mental state of knowingly is defined in terms of conduct, and/or the attendant circumstances, and/or the result of the offense.
- The culpable mental state of intentionally is defined only in terms of the result of the offense.
- Therefore, knowingly is, hands-down, the culpable mental state that best fits in
subsections (l)(a) and (l)(b) .
¶57 In any event, in the past, the court of appeals and our court alike have generally imputed the culpable mental state of knowingly when non-strict-liability statutory provisions are silent on a culpable mental state and there is no. clear reason to resort to a different culpable mental state. See Gorman v. People, 19 P.3d 662, 666 (Colo. 2000) (recognizing that “we have held that the mens rea of knowingly applies to the act enunciated in the statute ... when the statute does not specify a culpable mental state“); Moore, 674 P.2d at 358 (imputing the culpable mental state of knowingly in the counterfeit controlled substances statute); People v. Bridges, 620 P.2d 1, 3 (Colo. 1980) (concluding that the culpable mental state of knowingly is implied by the statute proscribing engaging in a riot), overruled in part on other grounds by People v. Jeffers, 690 P.2d 194 (Colo. 1984); see also Lawrence, 55 P.3d at 163 (inferring, from a statutory provision proscribing the wasteful destruction of wildlife, the culpable mental state of “knowingly” because “[n]othing in [the statutory] language logically is tied to ‘specific intent,’ ‘recklessness,’ or ‘neglect’ “).
¶58 But what about where, as here, such statutory provisions include the phrase “for the purpose of“? This is not our first rodeo at attempting to decipher the legislature‘s intent in that scenario either. Our decision in Candelaria v. People, 2013 CO 47, 303 P.3d 1202, is illustrative.
¶59 There, we were called upon to interpret “for the purpose оf” in
¶60 We rejected Stead‘s construction for several reasons, including that “the plain language of the [statute] ... does not contain a specific intent requirement.” Id. at ¶ 14, 303 P.3d at 1205. We explained that when the General Assembly wishes to include a specific intent requirement in a statute, it “typically employs the terms ‘intentionally’ and ‘with intent.’ ” Id. Because the legislature hadn‘t done so in
¶61 It is no different here. Without the express designation of the culpable mental state of intentionally in
¶62 We acknowledge that we have said in the past that purpose is synonymous with intent. See People v. Frysig, 628 P.2d 1004, 1010 (Colo. 1981). But when we have done so, we have meant the common meaning of intent, as distinguished from the legal meaning of specific intent. Id. (stating that ” ‘purpose’ as used in the criminal attempt statute is the equivаlent of the common meaning of the word ‘intent’ “). In Frysig, we made note of the legislature‘s decision in 1977 to revise the definition of “substantial step” in the criminal attempt statute by replacing ” ‘intent’ ... [with] ‘purpose,’ a word of like purport but without the specific intent definitional consequences which
¶63 Similarly, in Childress, ¶ 29, 363 P.3d at 164 (stating that the ” ‘dual mental state requirement’ of complicitor liability in this jurisdiction is more properly characterized as a requirement that the complicitor have,” among other things, “the intent, in the commonly understood sense of desiring or having a purpose or design, to aid, abet, advise, or encourage the principal in his criminal act or conduct” (emphasis added)), we analogized purpose with “intent, in the commonly understood sense.’ Here, we understand “for the purpose of,” as used in
[23] ¶64 Consistent with our case law, today we infer that the culpable mental state of knowingly applies in
5. Recap: Proof Required for the Crime of Soliciting for Child Prostitution
[24] ¶65 In sum, to be guilty of soliciting for child prostitution, an offender must act knowingly—i.e., be “aware of what he is doing“—in soliciting another for the purpose of prostitution of or by a child, arranging (or offering to arrange) a meeting with others for the purpose of prostitution of or by a child, or directing another to a place for the purpose of prostitution of or by a child.
Emerterio, 819 P.2d at 518; see also Ross II, ¶ 4, 479 P.3d at 912 (stating that, regardless of whether the culpable mental state of soliciting for child prostitution is intentionally or knowingly, that culpable mental state applies to every element of the offense); Gorman, 19 P.3d at 665 (applying the culpable mental state of knowingly to the act of contributing to the delinquency of a minor because “a person must know that he or she is inducing, aiding or encouraging someone to violate a ‘federal or state law,’ a ‘municipal or county ordinance,’ or a ‘court order’ “).
D. Application
¶66 Randolph contends that the district court erred by instructing the jury that the crime of soliciting for child prostitution, as charged here, required proof that he knowingly, rather than intеntionally, solicited or arranged (or offered to arrange) a meeting for the purpose of prostitution of or by a child. Because we have now held that the mens rea for the crime of soliciting for child prostitution under
IV. Conclusion
¶67 For the foregoing reasons, we conclude that the applicable culpable mental state in