v. Ross , 2021 CO 9 ( 2021 )

soliciting for child prostitution pursuant to subsections (a) and (b). The pertinent
element is that “the purpose” of the defendant’s solicitation, meeting arrangement,
or offer to arrange a meeting was “prostitution of a child or by a child.” And no
part of that element is subject to strict liability.
Finally, like the trial court and the court of appeals, the supreme court rules
that, while section 18-7-407, C.R.S. (2020), precludes a defendant from raising a
defense based on either his lack of knowledge of the child’s age or his reasonable
belief that the child was an adult, it does not relieve the People of their burden of
proof under subsections (a) and (b). Therefore, section 18-7-407 does not permit
the People to avoid their obligation to prove that, in soliciting another or arranging
(or offering to arrange) a meeting, the defendant’s purpose was child prostitution.
Because the court of appeals correctly approved the trial court’s ruling
under challenge, the supreme court affirms. However, the supreme court does so
on other grounds because its reasoning differs at least in part from that of the court
of appeals.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 9Supreme Court Case No. 19SC573
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA204
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Phillip L. Ross.
Judgment Affirmed
en banc
February 1, 2021
Attorneys for Petitioner:
Beth McCann, District Attorney, Second Judicial District
Johanna G. Coats, Deputy District Attorney
Denver, Colorado
Attorneys for Respondent:
Mallika L. Magner
Crested Butte, Colorado
Attorneys for Amicus Curie Colorado Criminal Defense Bar:
Decker & Jones
Christopher R. Decker
Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE MÁRQUEZ does not participate.
2
¶1 In this appeal, the People ask us to determine whether the phrase “for the
purpose of” in two statutory provisions defining the crime of soliciting for child
prostitution, § 18-7-402(1)(a), (b), C.R.S. (2020) (respectively “subsection (a)” and
“subsection (b)”), describes a culpable mental state. A division of the court of
appeals said it does and then equated the phrase with the culpable mental state of
intentionally or with intent. The People disagree and argue that the phrase “for
the purpose of” in subsections (a) and (b) does not describe a culpable mental state
or mens rea, but instead qualifies the prohibited conduct or the actus reus—
soliciting another or arranging (or offering to arrange) a meeting—by specifying
the reason for which such conduct must have been undertaken: for the purpose of
prostitution of a child or by a child.
¶2 But the People do not claim that subsections (a) and (b) impose strict
liability, which would require no more than “the performance by a person of . . . a
voluntary act or the omission to perform an act” the person “is physically capable
of performing.” § 18-1-502, C.R.S. (2020) (defining “strict liability”). Instead, they
urge us to rule that, while the two subsections are silent on a culpable mental state,
the proscribed conduct necessarily involves the culpable mental state of
3
knowingly or willfully.1 For that reason, maintain the People, we should impute
the culpable mental state of knowingly to each subsection.
¶3 We do not have to address the merits of the People’s position because, even
if we were to agree with it, the People still could not prevail on their final
contention, which is dispositive. According to the People, “[r]egardless of whether
the mens rea . . . is general knowledge or specific intent, that mental state does not
apply to the age of the child.” The age of the child, contend the People, is an
element governed by strict liability. The People would thus have us hold that
subsections (a) and (b) require proof that the defendant’s purpose was prostitution
and that the victim was a child—not proof that the defendant’s purpose was child
prostitution.
¶4 Contrary to the People’s assertion, however, the division correctly
determined that neither the victim’s age nor the defendant’s knowledge of, or
belief concerning, the victim’s age is an element of soliciting for child prostitution.
The pertinent element is that “the purpose” of the defendant’s solicitation, meeting
arrangement, or offer to arrange a meeting was “prostitution of a child or by a
1 In the interest of brevity, throughout the rest of this opinion, we refer to “with
intent” rather than to intentionally or with intent, and we refer to “knowingly”
rather than to knowingly or willfully. See § 18-1-501(5)–(6), C.R.S. (2020).
4
child.” And no part of that element is subject to strict liability. The requisite
culpable mental state—whether with intent, as the division determined, or
knowingly, as the People suggest—applies to all the elements (and every part of
each element) in subsections (a) and (b), including that the purpose of the
defendant’s conduct was the prostitution of or by a child. Therefore, simply
proving that the defendant’s purpose was prostitution in general, not child
prostitution specifically, cannot suffice—even if there is eventually prostitution of
or by a child.
¶5 And, like the trial court and the division, we conclude that, while
section 18-7-407, C.R.S. (2020), precludes a defendant from raising a defense based
on either his lack of knowledge of the child’s age or his reasonable belief that the
child was an adult, it does not relieve the People of their burden of proof under
subsections (a) and (b). Thus, section 18-7-407 does not give the People a pass on
their obligation to prove that, in soliciting another or arranging (or offering to
arrange) a meeting, the defendant’s purpose was child prostitution.
5
¶6 Because the division correctly approved the trial court’s ruling under
challenge, we affirm. However, because the division’s reasoning differs at least in
part from ours, we do so on other grounds.2
I. Facts and Procedural History
¶7 In 2015, Phillip L. Ross visited a website showing advertisements posted by
individuals willing to perform sexual acts in exchange for money. Two girls under
the age of eighteen, C.W. and M.O., had placed some of those advertisements.
While C.W. and M.O. listed varying ages in their advertisements, they consistently
indicated that they were at least nineteen years old and that any activities would
be between two adults. Ross sent the girls sexually explicit text messages and
negotiated the price he would pay in exchange for sexual acts.
¶8 During his communications with M.O., Ross specifically inquired about her
age, and she replied that she was twenty years old. Though Ross did not ask C.W.
her age, her photograph appeared in the advertisements. As a result, he was aware
of her physical appearance. When he was subsequently arrested, Ross admitted
to texting the girls and agreeing to pay for sexual acts but maintained that he had
not intended to solicit them for the purpose of child prostitution.
2We express no opinion on the soundness of the division’s conclusion that the
phrase “for the purpose of” in subsections (a) and (b) describes the culpable
mental state of with intent.
6
¶9 The People charged Ross with multiple offenses, including four counts of
soliciting for child prostitution, a class 3 felony. Two counts pertained to each girl:
one count pursuant to subsection (a) and one count pursuant to subsection (b). A
person commits the crime of soliciting for child prostitution under subsection (a)
if he “[s]olicits another for the purpose of prostitution of a child or by a child,” and
a person commits the same crime under subsection (b) if he “[a]rranges or offers
to arrange a meeting of persons for the purpose of prostitution of a child or by a
child.”
¶10 During trial, at the end of the People’s case, Ross moved for a judgment of
acquittal on all four counts of soliciting for child prostitution. He argued that the
People had failed to present any evidence that, in soliciting or arranging (or
offering to arrange) a meeting, his purpose was prostitution of a child or by a child.
According to Ross, that could not have been his purpose because he had no idea
the girls were children. What’s more, protested Ross, he reasonably believed the
girls were adults. The People countered that section 18-7-407 prevented Ross from
raising a defense based on either his lack of knowledge of the girls’ ages or his
reasonable belief that they were at least eighteen years old. The age of each girl,
maintained the People, was a strict liability element.
¶11 The trial court agreed with the People that section 18-7-407 precluded Ross
from defending against the charges based on either his lack of knowledge of the
7
girls’ ages or his reasonable belief that they were adults. But it nevertheless sided
with Ross’s interpretation of subsections (a) and (b) as requiring the People to
prove that, in soliciting another or arranging (or offering to arrange) a meeting, his
purpose was prostitution of or by a child. And, because it was uncontested that
the People had introduced no direct evidence that, in soliciting C.W. and M.O. or
arranging (or offering to arrange) a meeting with them, Ross’s purpose was
prostitution of or by a child, the court turned to the circumstantial evidence
admitted to determine whether such purpose could be inferred.
¶12 The court focused on the circumstantial evidence related to whether Ross
knew or should have known that the two girls were younger than eighteen years
of age. As to C.W., the court relied on her photograph in the advertisements to
find that the People had introduced sufficient evidence that Ross’s purpose in
soliciting or arranging (or offering to arrange) a meeting with her was prostitution
of or by a child. It thus denied Ross’s motion for a judgment of acquittal on the
two counts of soliciting for child prostitution naming C.W. However, as to M.O.,
the court reached the opposite conclusion because there was no photograph of her
in the advertisements, and the only information available about her age indicated
that she was at least nineteen years old. Hence, the court ruled that the People had
failed to present any evidence that, in soliciting M.O. or arranging (or offering to
arrange) a meeting with her, Ross’s purpose was prostitution of or by a child.
8
Consistent with that ruling, the court entered a judgment of acquittal on the counts
of soliciting for child prostitution naming M.O.
¶13 During deliberations, the jurors informed the court that, while they were at
an impasse on the two counts of soliciting for child prostitution naming C.W., they
could reach unanimous verdicts on the two lesser included misdemeanor offenses
of soliciting another (C.W.) for prostitution.3 Rather than accept the verdicts on
the lesser included offenses, the court granted the People’s request to declare a
mistrial. The People then filed an original proceeding in our court pursuant to
C.A.R. 21. After we declined to exercise our original jurisdiction, the People and
Ross entered into a plea disposition that allowed him to plead guilty to the two
misdemeanor counts of soliciting another (C.W.) for prostitution.
¶14 Relying on the “question of law” provision in subsection 16-12-102(1), C.R.S.
(2020), the People appealed to the court of appeals. As pertinent here, they argued
that subsections (a) and (b) are silent on a culpable mental state and that the
proscribed conduct warrants imputing the culpable mental state of knowingly.
Though the People acknowledged that the trial court had instructed the jury by
including the culpable mental state of knowingly as an element of the crime of
3The trial court instructed the jury on the lesser included offenses at Ross’s request
and over the People’s objection.
9
soliciting for child prostitution,4 they contended that the court had erred in
partially granting Ross’s motion for a judgment of acquittal based on the lack of
evidence that his purpose in soliciting M.O. or arranging (or offering to arrange) a
meeting with her was child prostitution. The People submitted that they were only
required to prove that Ross’s purpose was prostitution and that M.O. turned out
to be a child. In other words, the People viewed subsections (a) and (b) as
imposing strict liability on part of the purpose element.
¶15 In a published opinion, the division unanimously approved the ruling
dismissing the soliciting for child prostitution counts naming M.O. Contrary to
the People’s contention, the division determined that “for the purpose of” in
subsections (a) and (b) “is the equivalent of” the culpable mental state of “with
intent.” People v. Ross, 2019 COA 79, ¶ 30, __ P.3d __.
¶16 Further, like the trial court, the division rejected the People’s assertion that
the victim’s status as a child is an element of soliciting for child prostitution. Id. at
4With respect to subsection (a), the trial court instructed the jury that the elements
of the offense were that: (1) the defendant; (2) in the State of Colorado, on or about
the date charged; (3) knowingly; (4) solicited another; (5) for the purpose of
prostitution of a child or by a child. With respect to subsection (b), the trial court
instructed the jury along the same lines, except that element (4) stated that the
People were required to prove that Ross arranged or offered to arrange a meeting
of persons.
10
¶ 9. Rather, explained the division, what subsections (a) and (b) require the People
to prove is that, in soliciting another or arranging (or offering to arrange) a
meeting, the defendant’s intent was child prostitution. Id. So long as the People
prove that the defendant had the requisite intent, continued the division, “it does
not matter whether the ‘other’ whom the defendant solicit[ed]” was “actually a
child” or “actually an adult.” Id. Therefore, held the division, while
section 18-7-407 prevents a defendant from raising a defense based on either his
lack of knowledge of the victim’s age or his reasonable belief that the victim was
an adult, it does not dispense with the People’s burden under subsections (a)
and (b) to prove that the defendant’s intent in soliciting another or arranging (or
offering to arrange) a meeting was child prostitution. Id. at ¶ 49. And, because
the People had presented no evidence that Ross’s intent in soliciting M.O. or
arranging (or offering to arrange) a meeting with her was child prostitution, the
division approved the trial court’s ruling granting in part Ross’s motion for a
judgment of acquittal. Id.
¶17 The People asked our court to review the division’s opinion. And we agreed
to do so.5
5 The People’s petition raised two issues:
11
II. Analysis
¶18 We begin by discussing the standard of review controlling this appeal and
the relevant principles of statutory interpretation. Then, adhering to that
authority, we reach two conclusions.
¶19 First, the requisite culpable mental state—whether with intent, as the
division determined, or knowingly, as the People submit—applies to all the
elements (and every part of each element) in subsections (a) and (b), including that
the purpose of the defendant’s conduct was the prostitution of or by a child. In
other words, no part of the purpose element is subject to strict liability. Thus,
simply proving that the defendant’s purpose was prostitution in general, not child
prostitution specifically, cannot suffice—even if there is eventually prostitution of
or by a child.
¶20 Second, section 18-7-407 does not relieve the People of their obligation
under subsections (a) and (b) to prove that, in soliciting another or arranging (or
offering to arrange) a meeting, the defendant’s purpose was prostitution of or by
1. Whether the court of appeals erred when it held that the crime of
soliciting for child prostitution under section 18-7-402(1), C.R.S.
(2019), requires proof of specific intent.
2. Whether the requisite mental state for soliciting for child
prostitution under section 18-7-402(1), C.R.S. (2019), applies to all
elements of the crime.
12
a child. Therefore, the People cannot wield section 18-7-407 as a crutch here to
dodge their burden of proving that Ross solicited M.O. or arranged (or offered to
arrange) a meeting with her for the purpose of prostitution of or by a child.
¶21 Because the People failed to present any evidence that, in soliciting M.O. or
arranging (or offering to arrange) a meeting with her, Ross’s purpose was
prostitution of or by a child, the trial court correctly dismissed the two counts of
soliciting for child prostitution naming her. We thus affirm the division’s approval
of that ruling, albeit on different grounds.
A. Standard of Review and Relevant Principles of
Statutory Interpretation
¶22 The questions we confront today involve statutory interpretation. We
review issues of statutory interpretation de novo. Thompson v. People, 2020 CO 72,
¶ 22, 471 P.3d 1045, 1051.
¶23 In construing a statute, our primary goal is to ascertain and give effect to the
legislature’s intent. Id. To do so, our first step is always to look to the language of
the statute. Id. We must give each word and phrase its plain and ordinary
meaning. Id. And we must be mindful to “adopt a construction that avoids or
resolves potential conflicts” with other statutes and gives “effect to all legislative
acts, if possible.” Mook v. Bd. of Cnty. Comm’rs, 2020 CO 12, ¶ 24, 457 P.3d 568, 575
(quoting People v. Stellabotte, 2018 CO 66, ¶ 32, 421 P.3d 174, 180).
13
B. Application
¶24 Neither party asserts that soliciting for child prostitution, as set forth in
subsections (a) and (b), is a strict liability offense—nor would such an assertion
hold water. And neither party asks us to consider the culpable mental states of
“recklessly” and “criminal negligence”—nor are we aware of any basis to do so.
The parties disagree, though, on whether the applicable culpable mental state is
with intent or knowingly.
¶25 The division equated the phrase “for the purpose of” in subsections (a)
and (b) with the culpable mental state of with intent. Ross agrees with that
approach. But the People argue that “for the purpose of” in subsections (a) and (b)
relates to the prohibited conduct or the actus reus, not any culpable mental state
or mens rea. As such, the People believe that subsections (a) and (b) do not
expressly set forth a culpable mental state. The People urge us to impute the
culpable mental state of knowingly to both subsections pursuant to
section 18-1-503, C.R.S. (2020). Under section 18-1-503, even if no culpable mental
state is expressly designated in a statute defining an offense, “a culpable mental
state may nevertheless be required for the commission of that offense, or with
respect to some or all of the material elements thereof, if the proscribed conduct
necessarily involves such a culpable mental state.” § 18-1-503(2).
14
¶26 We leave this dispute for another day because its resolution does not affect
the outcome of the People’s appeal. Even if, as the People claim, “for the purpose
of” in subsections (a) and (b) relates to the prohibited conduct, not the culpable
mental state, and the applicable culpable mental state is knowingly, not with
intent, the People still cannot prevail here. Regardless of which of the two culpable
mental states applies, the People are mistaken in their belief that subsections (a)
and (b) require proof that the defendant’s purpose was prostitution and that the
victim was a child—not proof that the defendant’s purpose was child prostitution.
1. No Part of the Purpose Element in Subsections (a)
and (b) Is Governed by Strict Liability
¶27 When a statute defining an offense specifies a culpable mental state, that
culpable mental state “is deemed to apply to every element of the offense unless
an intent to limit its application clearly appears.” § 18-1-503(4). To the extent that
subsections (a) and (b) specify a culpable mental state, no legislative intent
appears in those subsections to restrict application of the applicable culpable
mental state to any element or elements. And, to the extent that subsections (a)
and (b) do not specify a culpable mental state but a culpable mental state must
nevertheless be imputed to some or all of the elements in those subsections, there
is no basis for exempting any part of the purpose element from application of such
culpable mental state. Hence, we perceive no sound reason to conclude that any
part of the purpose element in subsections (a) and (b) is subject to strict liability.
15
¶28 Still, the People claim that the plain language of subsections (a) and (b)
supports their position that they didn’t have to prove that Ross’s purpose in
soliciting M.O. or arranging (or offering to arrange) a meeting with her was child
prostitution. Instead, assert the People, the plain language of the two subsections
demonstrates that it was sufficient to prove that Ross’s purpose was prostitution
and that M.O. turned out to be a child. We disagree.
¶29 The subsections specifically refer to soliciting another or arranging (or
offering to arrange) a meeting “for the purpose of prostitution of a child or by a
child.” § 18-7-402(1)(a), (b) (emphasis added). Contrary to the People’s contention,
there is no persuasive basis for divorcing the phrase “of a child or by a child” from
the phrase “for the purpose of prostitution.” Consequently, we decline the
People’s invitation to treat, on the one hand, the phrase “for the purpose of
prostitution” as an adverbial phrase modifying the verbs “solicits,” “arranges,”
and “offers,” and, on the other, the phrase “of a child or by a child” as an adjectival
phrase modifying the noun “prostitution.” We believe that it is more faithful to
the legislature’s intent to read the pertinent language in subsections (a) and (b) as
a single adverbial phrase: “for the purpose of prostitution of a child or by a child.”
¶30 The People maintain, however, that section 18-7-407 corroborates their
interpretation of subsections (a) and (b). For the reasons we articulate next, we
beg to differ.
16
2. Section 18-7-407 Does Not Alter the People’s Burden
Under Subsections (a) and (b)
¶31 Section 18-7-407 provides that in any prosecution brought pursuant to
sections 18-7-402 to -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.” According to the People, this provision creates strict liability as to the
element in subsections (a) and (b) related to the victim’s age. This is a strawman
argument, however, because neither subsection includes an element regarding the
victim’s age. Rather, the pertinent element is that the defendant’s solicitation,
meeting arrangement, or offer to arrange a meeting was “for the purpose of
prostitution of a child or by a child.”
¶32 The focus of the crime of soliciting for child prostitution is the solicitation,
meeting arrangement, or offer to arrange a meeting, accompanied by the purpose
behind such conduct, not the ultimate sexual act, which may or may not occur and,
if it occurs, may or may not involve a child. See People v. Emerterio, 819 P.2d 516,
518 (Colo. App. 1991), rev’d on other grounds sub nom. People v. San Emerterio,
839 P.2d 1161 (Colo. 1992). The crime is completed the moment the defendant
solicits another or arranges (or offers to arrange) a meeting for the requisite
purpose. Cf. People v. Mason, 642 P.2d 8, 13 (Colo. 1982) (indicating that soliciting
for prostitution “is complete when the offender solicits another for prostitution,
17
[or] arranges or offers to arrange a meeting of persons for the purpose of
prostitution”).
¶33 Thus, if a defendant solicits another for the purpose of prostitution of a
child, the defendant violates subsection (a). It doesn’t matter whether anyone is
ultimately prostituted and, if so, whether that person turns out to be a child. By
the same token, if a defendant solicits another for the purpose of prostitution of an
adult, the defendant does not violate subsection (a). That’s true regardless of
whether anyone is ultimately prostituted and, if so, whether that person turns out
to be a child. Of course, proof that a child was, in fact, ultimately prostituted and
that the defendant knew or should have known she was a child may well be
circumstantial evidence related to the purpose of the solicitation.
¶34 We acknowledge that there is some tension between section 18-7-407 and
subsections (a) and (b). But we are duty-bound to interpret these statutory
provisions harmoniously—that is, in a manner that gives consistent and sensible
effect to all their parts and avoids rendering any words or phrases meaningless.
Mook, ¶ 24, 457 P.3d at 574. For that reason, like the trial court and the division,
we conclude that, while section 18-7-407 precludes a defendant from raising a
defense based on either his lack of knowledge of the child’s age or his reasonable
belief that the child was an adult, it does not relieve the People of their obligation
18
under subsections (a) and (b) to prove that, in soliciting or arranging (or offering
to arrange) a meeting, the defendant’s purpose was prostitution of or by a child.
¶35 Finally, we are not persuaded otherwise by the People’s argument that this
reading of subsections (a) and (b) and section 18-7-407 will lead to
unconstitutional results. The “doctrine of constitutional avoidance” on which the
People rely applies only when courts interpret statutes that are ambiguous.6 Here,
while we believe there is some tension between section 18-7-407 and
subsections (a) and (b), we discern no ambiguity in their provisions.
III. Conclusion
¶36 We conclude that the requisite culpable mental state in subsections (a)
and (b)—whether with intent, as the division determined, or knowingly, as the
People urge—applies to all the elements (and every part of each element) in those
subsections. We further conclude that section 18-7-407 does not relieve the People
of their obligation under subsections (a) and (b) to prove that, in soliciting another
6 There are at least two different canons of construction that are sometimes given
the “constitutional avoidance” label: one, perhaps better termed the “presumption
of constitutionality,” directs courts, where possible, to “interpret ambiguous statutes
to avoid rendering them unconstitutional”; the other, the “constitutional doubt
canon,” which is the more modern and more debated canon, suggests that “courts
should construe ambiguous statutes to avoid the need even to address serious
questions about their constitutionality.” United States v. Davis, 139 S. Ct. 2319, 2332
n.6 (2019) (emphases added).
19
or arranging (or offering to arrange) a meeting, the defendant’s purpose was
prostitution of or by a child. Because the division correctly approved the trial
court’s ruling under challenge, we affirm. However, because the division’s
reasoning differs at least in part from ours, we do so on other grounds.
20