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.
¶ 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
¶ 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
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.