Opinion by
T1 Defendant, Timothy Charles Houser, appeals the judgment of conviction entered on a jury verdict finding him guilty of patronizing a prostituted child. We affirm and remand for correction of the mittimus.
I. Background
12 AJ. was arrested in Denver and charged with prostitution, soliciting for the purpose of prostitution, and possession of a controlled substance. She was then sixteen years old,. AJ. told police that the night before her arrest, she had gone to defendant's home in Douglas County where he paid her $240 to engage in sexual acts with him. Because of her cooperation, Denver authorities allowed A.J. to plead guilty to a prostitution charge, a class three misdemean- or, and dropped the possession charge, a class three felony. She received a deferred adjudication.
T8 Based on A.J.'s statements, defendant was charged in Douglas County with patronizing a prostituted child in violation of section 18-7-406, C.R.S.2012, and another offense that was dismissed before trial. At trial, A.J. testified that she had come to Denver from Washington to earn money through prostitution. Upon arrival, she posted a notice on Craigslist identifying herself as a twenty-year-old "playmate."
1 4 The prosecution entered into evidence three emails from defendant, the validity of which he did not dispute.
* The first email responded to A.J.'s posting by requesting "references" and wanting to "schedule for tomorrow," if the references "look good."
@ The second email, sent in response to a potential client trying to find A.J., said that defendant was "just a tiny bit unsure [albout [A.J.'s] age".
e The third email, sent the day after A.J. had been to defendant's home, said that she was "the real deal," made an "[olut-call all the way to Parker," performed "great utf, [was] very enthusiastic and FTF." Prosecution witnesses testified that "ut?" and "FTF" were abbreviations frequently used on the Internet to describe the sexual acts that A.J. testified she had performed for money.
Defendant did not testify.
II. Affirmative Defense
"I 5 Defendant first contends the trial court erred by precluding him from raising the defense that he reasonably believed A.J. was at least eighteen years old. We reject this contention.
T 6 After defendant gave notice before trial of his intent to assert this defense, the trial court ruled that section 18-7-407, C.R.S. 2012,
A. Sufficiency of Evidence to Support the Affirmative Defense
T7 As a preliminary matter, we reject the Attorney General's assertions that we may affirm without construing the statutes, see People v. Eppens,
1. Standard of Review
18 "[TJo present an affirmative defense for jury consideration, the defendant must present some credible evidence on the issue involving the claimed defense. Whether the defendant meets this burden of going forward is a question of law for the trial court, and we therefore review the sufficiency of the defendant's evidence de novo." People v. Garcia,
2. Law
19 Evidence supporting an affirmative defense "may come from any source, even from the prosecution." People v. Whatley,
3. Application
110 Here, the record contains sufficient evidence to support a reasonable belief defense, if it is statutorily available A.J. testified at trial that she presented herself to clients as a twenty-year-old, which was confirmed by evidence of her online postings. These postings included photographs of A.J., which, if viewed in the light most favorable to defendant, could portray a person at least eighteen years of age.
T11 Further, defendant's position at trial-that he never engaged in sexual acts with A.J.-did not preclude the affirmative defense. The Attorney General's reliance on People v. Villarreal,
1 12 Here, defendant intended to argue at trial that he was not guilty because he reasonably believed A.J. was at least eighteen years old. However, the pre-trial ruling forced him to present a different theory. Thus, it was the trial court's ruling, and not defendant's strategic choice, which explains his position that he never engaged in sexual acts with A.J. And, unlike in Villarreal, sufficient evidence was presented at trial to support the reasonable belief defense.
{13 Therefore, we turn to the statutory conflict.
B. Statutory Conflict Between Sections 18-1-508.5(1) and 18-7-407
T14 We conclude, in a matter of first impression, that section 18-7-407 prevents a defendant from offering a reasonable belief in age defense to a charge of patronizing a prostituted child.
1. Standard of Review
T15 Appellate courts review questions of statutory interpretation de novo. Vaccaro v. Am. Family Ins. Group,
2. Law
{16 When construing a statute, a court's primary goal is to effectuate the intent of the General Assembly. Martin v. People,
8. Application
a. Statutory Conflict
{18 Under section 18-1-508.5(1), which applies generally to offenses under the criminal code, "[ilf 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." But under section 18-7-407, which applies specifically to acts of child prostitution, "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."
119 These two provisions conflict. While one provision mandates that the court allow a reasonable belief defense when the victim is at least fifteen years old, the other expressly prohibits such a defense. See People v. Clark,
b. Manifest Intent
120 The General Assembly's intent is "manifest" only when such intent is "clear and unmistakable." See Falls,
121 In 2001, the General Assembly passed the Criminal Substantive Omnibus Bill, which changed many unrelated areas of the Criminal Code. One of these changes added section 18-1-5038.5(1), the first sentence of which had been in the section of the criminal code relating to "unlawful sexual behavior," to the article containing "provisions applicable to offenses generally." Ch. 248, see. 5, § 18-8-406, 2001 Colo. Sess. Laws 859. The legislature also added a see-ond sentence in 2007, saying that the affirmative defense permitted by the section "shall not be available if the criminality of conduct depends on the defendant being in a position of trust." Ch. 3838, see. 4, § 18-1-508.5(1), 2007 Colo. Sess. Laws 1687.
122 The text of section 18-1-508.5(1) is silent whether it is intended to repeal conflicting provisions in the code or whether those conflicting provisions should control. However, the sentence exempting use of the defense when the defendant held a position of trust suggests that the General Assembly intended the defense to apply in all other cases. See Marcellot v. Exempla, Inc.,
23 Portions of the legislative history also support the interpretation that the section was intended to apply to all types of crimes where criminality depends on a victim's age.
24 But other portions of the legislative history support a more narrow view. In the committee hearing, the same House sponsor said that the affirmative defense provision was only intended to apply to crimes where criminality attaches solely because of the vie-tim's age. He offered the example of providing tobacco to minors: giving a cigarette to a fellow House committee member would not be criminal conduct, while giving the same cigarette to a minor would be criminal. Because commercialized sex is criminal regardless of the worker's age, this comment suggests that the General Assembly did not intend to provide a new affirmative defense to erimes involving child prostitution.
125 Additionally, while discussing an amendment to what would become section 18-1-508.5, several members of the House Criminal Justice Committee expressed concern over significantly altering eriminal justice policy in an omnibus bill. Rather, they believed that such changes should be made in stand-alone bills, which could be separately discussed and evaluated. And the presenting House sponsor introduced the relevant section of the bill by saying it was intended to "clariffy]" the law and "doesn't change very much." These comments suggest that the General Assembly did not intend to alter the defenses available to defendants charged with child prostitution, as this would be a substantial change to the previous law.
1 26 Most importantly, the effect of section 18-1-508.5(1) on section 18-7-407, which had remained unchanged since reenactment in 1979, was not mentioned in the committee or floor debates in either the House or the Senate. Therefore, the legislative history is not so "clear and unmistakable" to show that the General Assembly manifestly intended section 18-1-508.5(1) to control the specific provision, section 18-7-407.
127 Accordingly, we conclude that the latter section precluded defendant from offering a reasonable belief in age defense. Having discerned a basis on which to resolve the statutory conflict, the rule of lenity does not apply. See People v. Sorrendino,
III. Unpreserved Vagueness Challenge
€ 28 Defendant next contends that because section 18-7-401(6) does not clearly define the acts prohibited, it is unconstitutionally vague on its face. He concedes "this issue is unpreserved," but asserts the issue should be considered for the first time on appeal because "divisions of this Court and the Supreme Court have elected to address challenges raised for the first time on appeal in numerous cases." On the particular cireum-stances presented, we decline to do so.
29 This concession "raises the question of the extent to which defendant is entitled to appellate review of this issue." People v. Allman,
131 A few more recent cases, however, have suggested that such an issue may be taken up for the first time on appeal in the division's discretion. See, eg., Allman, ¶ 17 (vagueness); People v. Devorss,
182 Although "we are bound to follow supreme court precedent," People v. Gladney,
133 While Hinojos-Mendoza cited Cagle, it took up the constitutional confrontation issue as a matter of discretion. But see Martinez v. People,
€ 34 In Justus v. State,
1386 Judicial economy can be examined from two perspectives. The narrower view looks only forward, from the case pending before the appellate court, in deciding whether efficiency can be achieved by that court deciding an issue because it is likely to arise in a later proceeding below. The broader view looks systemically, from the start of the case, in also considering the efficiency that could have been achieved by raising the issue earlier.
137 Beginning with the narrower approach, if, on direct appeal, a division of this court recognized but declined to address an unpreserved constitutional vagueness argument, a postconviction proceeding for ineffective assistance of trial counsel would be likely. In Estep v. People,
138 Thus, the specter of an ineffective assistance claim favors permitting flawed appeals to proceed in the interest of judicial economy. See, eg., People v. Baker,
139 In a postconviction proceeding raising ineffective assistance of counsel, to succeed the defendant must show that the attorney's performance was "deficient" and that he suffered prejudice as a result of this deficient performance. Carmichael v. People,
40 However, unlike direct appeal, which would address only vagueness of the challenged statute and its effect on the defendant, the postconviction court must also consider whether trial counsel's failure to raise the challenge "fell below an objective standard of reasonableness." People v. Price,
T41 A facial vagueness challenge involves a heavy burden and succeeds only when the statute is "impermissibly vague in all of its applications" because it specifies "no standard of conduct." People in Interest of M.C.,
1 42 Defendant cites no authority, nor have we found any in Colorado, suggesting that section 18-7-407 is so obviously deficient that failing to challenge its constitutionality amounts to unreasonable advocacy, as a matter of law. Cf. Page v. United States,
T48 Hinojos-Mendoza does not require a different conclusion. There, the supreme court recognized judicial economy in taking up an unpreserved confrontation issue under Crawford v. Washington,
1 44 Here, in contrast, defendant does not invoke any recently-announced precedent on vagueness. Because the vagueness argument could have made before trial, the particular cireumstances of Hinojos-Mendoza do not preclude considering the diseconomies resulting from defendant's failure to raise the issue at that time. Therefore, the narrower approach does not warrant a departure from Cagle and its progeny.
$45 The systemic approach recognizes that judicial resources are conserved "by alerting the trial court to a particular issue in order to give the court an opportunity to correct any error that could otherwise jeopardize a defendant's right to a fair trial." People v. Pahl,
146 A constitutional vagueness challenge to a statute could be raised by motion. See Crim.: P. 12(b)(1) ("Any defense or objection which is capable of determination without the trial of the general issue may be raised by motion."); see also, eg., People v. Waddell,
T47 Because such a challenge does not require the defendant to develop a factual record before moving, it could also be raised 'early in the proceeding. Compare People v. Veren,
{48 Raising vagueness of the underlying statute promptly by motion would save significant judicial resources otherwise consumed by pretrial proceedings, trial, and appeal.
149 Accordingly, because judicial economy does not clearly afford a basis for departing from Cagle, Lesney, and numerous decisions from divisions of this court, we decline to consider defendant's vagueness challenge.
IV. Confrontation Evidence
€50 Defendant next contends the trial court violated his confrontation rights by precluding cross-examination of A.J. on the details of her plea agreement, her continued prostitution, and the outstanding warrant. We conclude that constitutional error occurred, but it was harmless beyond a reasonable doubt.
1 51 Before trial, the prosecution moved in limine to preclude evidence of A.J.'s sexual history, her initial arrest, the terms of her plea agreement, and her continued prostitution despite her promise to reform when obtaining deferred adjudication. Defense counsel argued that this information was admissible to impeach A.J. by showing bias.
$52 At the hearing, the prosecution told the court of an outstanding arrest warrant for A.J. because she had violated the terms of her probation. In response, defense counsel requested that A.J. be arrested when she testified at trial. However, he did not ask the court to rule on the admissibility of the warrant.
53 The trial court found that: A.J.'s continued prostitution did not "have any bearing on any issues before this [clourt"; section 16-9-204, C.R.S.2012, gave AJ. immunity from arrest as an out-of-state witness; and the details of A.J.'s arrest and her plea deal were irrelevant.
154 On cross-examination, A.J. said that she was "unemployed." During redirect, she said that no one had suggested she would receive any benefit from testifying. Defense counsel then sought leave to cross-examine her about the specifics of the original charges and plea, as well as her continued prostitution.
$55 The trial court ruled that counsel could explore on recross-examination "the fact that [A.J.] faced charges in Denver, that the matter was resolved, and does she have any obligation as part of that matter to come to court." After hearing in camera testimony from AJ., the court refined its ruling, allowing inquiry into whether a disposition had been reached that required her to testify against defendant. However, the court would not permit counsel "to go into what she was charged [with] and what was dismissed and the idea of the deferred adjudication." Following this ruling, A.J. testified before the jury that she had been arrested and charged in Denver the day after her encounter with defendant and had reached a
T56 For the reasons stated below, we conclude that the court committed constitutional error in limiting eross-examination on the plea agreement. However, we further conclude that overwhelming evidence of defendant's guilt rendered this error harmless beyond a reasonable doubt. Having so concluded, we need not address the other two alleged confrontation violations.
A. Standard of Review
157 "[A] trial court has substantial discretion in deciding questions concerning the admissibility of evidence. Therefore, absent an abuse of discretion the evidentiary rulings of a trial court will be affirmed." People v. Quintana,
B. AJ.'s Original Charges and Plea Bargain
1. Trial Court Limitations Constitute Error
158 The right to confront and eross-examine witnesses is guaranteed by the federal and Colorado Constitutions. Kinney v. People,
159 A confrontation violation oceurs if the defendant "was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness," which leaves the jury with a "significantly different impression of the witness's credibility." Kinney,
160 As relevant here, when a witness faced criminal charges and entered into a plea agreement, the defendant must be allowed to provide the jury "with adequate facts from which it can appropriately draw inferences relating to bias and motive." People v. Montoya,
161 Here, contrary to these cases, the jury heard only that A.J. had been arrested, agreed to plead guilty, and provided
T62 AJ.'s equivocation about whether her plea agreement was conditioned on providing testimony against defendant underscores the need to expose the jury to "facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." People v. Pate,
T 63 Therefore, by precluding eross-exami-nation on the plea details, the trial court denied defendant his constitutional right to confrontation.
2. The Error was Harmless Beyond a Reasonable Doubt
T 64 Both the United States and Colorado Supreme Courts have held that constitutional errors occurring during trial do not require reversal, if the error was harmless beyond a reasonable doubt. See Van Arsdall,
165 Even assuming maximum damage to the witness's credibility, appellate courts should not reverse if the overall strength of the prosecution's case, the absence of contradictory evidence, and the extent of the cross-examination permitted show that the error was harmless beyond a reasonable doubt. Id. at 169. The prosecution bears the burden of proof in this inquiry. People v. Harris,
166 Here, A.J.'s testimony was a key element of the prosecution's case, but was not the only evidence of defendant's guilt. The emails recovered from defendant's computer admit that he:
e Contacted A.J. about "references" from other clients and wanted to "schedule for tomorrow";
e Paid A.J. $240, which included a bonus for having come to his home on the night of the charged offense; and
e Used common Internet abbreviations to describe his sexual contact with A.J.
167 Defense counsel attempted to explain these admissions by arguing that, while A.J. came into defendant's home and he gave her money, he did not engage in sexual acts with her because she refused to provide identification verifying her age. Defense counsel also argued that the email favorably reviewing A.J.'s performance had been fabricated by defendant to help A.J. with her business.
168 However, because defendant did not testify, no evidence supports either argument. Appellate courts may only consider assertions that are supported by record evidence, McCall v. Meyers,
T 70 While we conclude that the trial court impermissibly limited defendant's cross-examination of A.J., the court did not entirely prevent cross-examination about bias or motive. Defense counsel questioned A.J. about inconsistencies in her testimony and suggested that she had changed her testimony during trial based on prosecution evidence. See Vega v. People,
T71 Therefore, even assuming that the excluded evidence would have caused maximum damage to A.J.'s credibility, the trial court's error was harmless beyond a reasonable doubt.
C. Other Confrontation Clause Violations
172 Defendant also asserts that the trial court violated his constitutional rights by excluding evidence of the outstanding warrant against A.J. and of her continued prostitution. However, admission of this evidence would have benefitted defendant in the same way as evidence of the details of the plea agreement-to damage A.J.'s credibility. Therefore, even assuming that these limits on cross-examination were preserved constitutional errors, they were harmless beyond a reasonable doubt for the reasons described above. Hence, we need not address these issues. Cf. People v. Pena-Rodriguez,
V. Jury Instructions
A. Definitional Instruction
I 73 Defendant argues that the trial court's instruction defining "prostitution by a child" was erroneous in three ways. First, the statute on which the instruction was based violates due process and equal protection. Second, the trial court's definition did not conform to People v. Madden,
174 We decline to address defendant's unpreserved constitutional arguments for the same reasons given in Part III, supra. Because providing the statutory definition of "prostitution by a child" was appropriate and Madden does not require a different result, we discern no error in the trial court's instruction.
1. Standard of Review
175 When a defendant does not make a specific objection to tendered jury instructions, review is for plain error. People v. Garcia,
2. Discussion
176 Definitional instructions are generally proper when they follow the language of the applicable statute. See, eg., Riley v. People,
177 When a statute defines an offense using multiple theories of liability, so instructing the jury is not error, even if the evidence is insufficient to support the conviction under every theory provided in the statute. See People v. Dunaway,
178 Here, while defendant concedes that the definitional instruction substantially followed the statutory language, he asserts for the first time on appeal that error occurred because the instruction provided multiple ways by which an act could constitute "prostitution by a child," thereby "failling] to specify what action, if any, was required." However, the instruction merely recites the multiple, statutorily-defined means of committing the underlying offense, one of which is "a child ... offering or agreeing to perform ... any [sexual] act ... in exchange for money." And defendant's emails were sufficient to support a jury finding to this effect. See People v. Jones,
179 People v. Madden does not require a different result. In Madden, the supreme court held that convicting a defendant of "patronizing a prostituted child" requires some record evidence that the defendant "attempted to give anything of value ... in exchange for sex."
1 80 Therefore, the trial court's definitional instruction did not constitute plain error.
B. Lesser-Included Offense Instruction
€{81 Defendant also challenges the trial court's failure to give his tendered jury instruction on the lesser-included offense of attempt. However, given the definition of "prostitution by a child," the evidence would
1. Standard of Review
182 A trial court's decision whether to instruct the jury on a lesser-included offense is reviewed for an abuse of discretion. People v. Rubic,
2, Discussion
1838 "A defendant is entitled to an instruction on a lesser-included offense if there is evidence to support giving that instruction. Such an instruction is appropriate when there is a rational basis to acquit of the offense charged but convict on the included offense. However, the mere chance that a jury may reject uncontroverted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge." People v. Ramires,
184 The offense of patronizing a prostituted child requires, as relevant here, "knowingly engaging in an act" where "a child perform[s] or offer[s] or agree[s] to perform ... any [sexual] act ... in exchange for money." § 18-7-406(1)(a), 18-7-401(6). Based on the language of the statute, actual performance of a sexual act is not necessary; a mere offer or agreement to perform is sufficient, provided money has been promised. See supra Part V.A; Madden,
185 Here, because the uncontrovert-ed evidence that sixteen-year-old A.J. agreed to perform sexual acts in exchange for money promised her by defendant established the required elements of the crime, giving a lesser-included instruction. would have been improper. See People v. Price,
186 Further, the jury could not logically acquit defendant of an act considered "patronizing a prostituted child" under the statute's broad definition, which includes offering to engage in sexual activities for money, while convicting him of attempting to perform these same acts. "[TJhere can be no crime of an attempt to commit an attempt." Allen v. People,
187 Therefore, the trial court properly rejected defendant's attempt instruction.
VIL Correction of the Mittimus
1 88 Finally, both parties concede, and we agree, that the mittimus incorrectly states
VIL. Conclusion
[ 89 The judgment is affirmed and the case is remanded for correction of the mittimus.
Notes
. "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." § 18-7-407, C.R.S. 2012.
. "If 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. This affirmative defense shall not be available if the criminality of conduct depends on the defendant being in a position of trust." § 18-1-503.5(1), C.R.S.2012.
. In contrast, most federal circuits review for plain error a constitutional challenge to a statute raised for the first time on appeal. See, eg., United States v. Wright,
. See, e.g., People v. Baker,
. Cases such as Estep, which involved an untimely appeal, are distinguishable because failure to perfect an appeal for a defendant who desired to appeal would be per se unreasonable. See Baker,
. While the same could be said of many issues taken up on direct appeal as plain error under Crim. P. 52(b), here the inquiry is narrowed by Cagle and Lesney.
. Both Greer and Tillery are distinguishable because the unpreserved double jeopardy issues affected only sentencing.
. A.J. testified that, after having engaged in sexual acts but before she left defendant's home, he asked to see some identification that would confirm her age, as he had seen posts on Craigslist suggesting that she was underage. A.J. declined to do so. On cross-examination, defense counsel challenged this sequence of events. AJ. repeated that her age came up only after she and defendant engaged in sexual acts.