v. Grosko , 2021 COA 28 ( 2021 )

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
March 11, 2021
2021COA28
No. 17CA0720, People v. Grosko — Crimes — Pimping; Criminal
Law — Limitation for Commencing Criminal And Juvenile
Delinquency Proceedings — Continuing Offenses;
Constitutional Law — Fifth Amendment — Double Jeopardy —
Multiplicity
A division of the court of appeals decides two matters of first
impression with respect to the pimping statute, section 18-7-206,
C.R.S. 2020. First, the division concludes pimping is defined by the
statute as a continuing offense. Second, the division concludes that
the unit of prosecution for pimping is defined as per person; that is,
an individual who is supported by funds derived from another’s
prostitution may be prosecuted based on the number of prostitutes
that they receive money or other things of value from. In addition,
the division concludes that the district court did not abuse its
discretion in allowing expert witness testimony in this case. For
these reasons, the judgment of conviction is affirmed.
COLORADO COURT OF APPEALS 2021COA28
Court of Appeals No. 17CA0720
Jefferson County District Court No. 15CR3357
Honorable Randall C. Arp, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert Jay Grosko,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE ROMÁN
Welling and Brown, JJ., concur
Announced March 11, 2021
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Robert Jay Grosko, appeals the judgment of
conviction entered after a jury found him guilty of pimping,
attempted pimping, solicitation, and pandering. We affirm
defendant’s convictions. In doing so, we address two matters of
first impression.
¶2 First, we conclude that the plain language of section 18-7-206,
C.R.S. 2020, makes pimping a continuing offense. Thus, we affirm
defendant’s conviction for pimping for acts that occurred both
within and outside of the statute of limitations.
¶3 Second, we conclude that the unit of prosecution for pimping
is defined by section 18-7-206 as per person — that is, an
individual who is supported by funds derived from another’s
prostitution may be prosecuted based on the number of prostitutes
that the pimp receives money or other things of value from. We
therefore affirm defendant’s multiple convictions for attempted
pimping because the evidence in support of his convictions was
based on attempts to pimp two separate individuals.
¶4 We also reject defendant’s evidentiary contention.
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I. Background
¶5 According to the prosecution’s evidence, defendant recruited
E.W. to work for him as a prostitute in 2015. After E.W. “tr[ied]
out” by having sex with him, defendant arranged for clients to meet
with E.W. Defendant and E.W. agreed that he would receive 21% of
the proceeds of E.W.’s work. E.W. ultimately saw four clients over
the course of two weeks and made $550, although she never gave
any of the money to defendant.
¶6 S.T., a prostitute who had previously worked for defendant in
2013, contacted defendant to arrange a “threesome.” Unbeknownst
to defendant, S.T. was working for the FBI as a confidential
informant. Defendant sent E.W. to join S.T. for the “threesome,”
which turned out to be a sting. After E.W. was arrested, she
informed police that she was supposed to meet with defendant to
pay him the 21% of her proceeds that she owed him.
¶7 At the same time as the sting, defendant went to meet A.W.,
another girl he recruited to work for him as a prostitute — also for
21% of the proceeds. A.W., however, was a false persona created by
law enforcement. Defendant was arrested at the same time as the
sting set up to catch E.W.
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¶8 The prosecution charged defendant with two counts of
attempted pimping (one each for E.W. and A.W.), and one count of
pimping (S.T.). On a motion by defense counsel, the court severed
trial for the pimping count from the attempted pimping counts.
After the trial on the attempted pimping charges, a jury convicted
defendant of two counts of attempted pimping, and two counts of
the lesser nonincluded offense of solicitation. After the trial on the
pimping charge, a jury convicted defendant of one count of pimping
and the lesser nonincluded offense of pandering.
¶9 The trial court sentenced defendant to eight years in prison for
each of the attempted pimping counts, to be served concurrently;
ten years in prison for the pimping charge, to be served
consecutively; and six months in jail, time served, for all of the
lesser nonincluded offenses.
II. Analysis
¶ 10 On appeal, defendant contends that (1) pimping is not a
continuing offense, and therefore the trial court lacked jurisdiction
as to the pimping charge and conviction because the alleged date
range fell outside of the statute of limitations; (2) in the alternative,
if pimping is a continuing offense, defendant’s convictions for
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attempted pimping were multiplicitous in violation of double
jeopardy; and (3) the trial court erred by admitting expert
testimony. We consider and reject each of these contentions.
A. Pimping is a Continuing Offense
1. Standard of Review and Applicable Law
¶ 11 Determining whether an offense is continuing is a matter of
statutory interpretation, which we review de novo. Allman v. People,
2019 CO 78, ¶ 10.
¶ 12 “When the legislature creates an offense, that offense is
deemed committed once all the substantive elements set forth by
the legislature are satisfied.” Id. at ¶ 11. “‘However, in certain
circumstances, a crime continues beyond the first moment when all
its substantive elements are satisfied,’ and it is deemed a
continuing offense.” Id. (quoting People v. Thoro Prods. Co., 70 P.3d
1188, 1192 (Colo. 2003)). A continuing offense “continues (and the
statute of limitations does not begin to run) so long as the illegal
conduct continues.” Thoro Prods. Co., 70 P.3d at 1193; see also
§ 16-5-401(4), C.R.S. 2020 (“When an offense . . . is based on a
series of acts performed at different times, the period of limitation
4
prescribed by this code . . . starts at the time when the last act in
the series of acts is committed.”).
¶ 13 “A crime is deemed continuous when ‘the explicit language of
the substantive criminal statute compels such a conclusion,’” or
when “the nature of the crime involved is such that [the legislature]
must assuredly have intended that it be treated as a continuing
one.” Allman, ¶ 12 (alteration in original) (quoting Toussie v. United
States, 397 U.S. 112, 115 (1970)).
2. Additional Facts
¶ 14 In the initial charging documents, the prosecution charged
defendant with one completed count of pimping regarding E.W. and
two attempt counts — one referencing S.T. and the other
referencing A.W. Each charge alleged that defendant’s conduct
occurred in 2015.
¶ 15 In April 2016, the prosecution moved to amend and correct
the information to state that (1) defendant’s conduct with respect to
E.W. constituted attempted pimping, rather than a completed
offense; and (2) defendant had completed the crime of pimping with
respect to S.T. between January and December 2013.
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¶ 16 After a jury convicted defendant of pimping, he moved to
dismiss the pimping charge as to his conduct related to S.T.
because the April 2016 amendment fell outside the three-year
statute of limitations by charging acts that occurred in January
through March of 2013. The trial court found that the plain
language of the pimping statute indicates that pimping is a
continuing offense, and therefore, the statute of limitations did not
run until December 2016, three years after the last act.
3. Discussion
¶ 17 The pimping statute, section 18-7-206, states:
Any person who knowingly lives on or is
supported or maintained in whole or in part by
money or other thing of value earned, received,
procured, or realized by any other person
through prostitution commits pimping, which
is a class 3 felony.
¶ 18 Where, as here, the statute itself does not explicitly state that
a crime is a continuing offense, we construe the statute to give
effect to the legislature’s intent. Allman, ¶ 12. To discern the
legislature’s intent, we first look to the plain language of the
statute’s text in the context of the statute as a whole. Id. at ¶ 13.
Where the statute does not specifically define key terms, we look to
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the plain and ordinary meanings of the words, aided by the
dictionary definition(s). Id. at ¶ 15; § 2-4-101, C.R.S. 2020.
¶ 19 Here, the plain language of section 18-7-206 defines a criminal
act that takes place over time. In particular, the plain and ordinary
meaning of the phrase “lives on or is supported or maintained”
leads us to this conclusion. The dictionary definitions of “living,”
“support,” and “maintain” each contemplate an ongoing period of
time. See Black’s Law Dictionary 953 (11th ed. 2019) (defining
“living” as “[o]ne’s source of monetary support or resources”); id. at
1481 (defining “support” as “[s]ustenance or maintenance; esp.
articles such as food and clothing that allow one to live in the
degree of comfort to which one is accustomed.”); id. at 973 (defining
“maintenance” in this context as “[f]inancial support given by one
person to another . . .”); accord Webster’s Third New International
Dictionary 1323 (2002) (defining “live” in this context as “to
maintain oneself”); id. at 1362 (defining “maintenance” as “the act of
providing a means of support for someone”); id. at 2297 (defining
“support” as “to pay the costs of”).
¶ 20 Our conclusion today is the same as that of California courts
interpreting identical statutory language. See, e.g., People v. Lewis,
7
143 Cal. Rptr. 587, 591 (Ct. App. 1978) (“Reasonable interpretation
of the statutory definition [of pimping] leads to but one conclusion
[ — ] that the legislative intent was that living or deriving support or
maintenance from the earnings of a prostitute . . . is an ongoing
continuing offense that occurs over a period of time.”); see also
People v. Culuko, 92 Cal. Rptr. 2d 789, 801 (Ct. App. 2000)
(“[t]ypical continuous course of conduct crimes include . . .
pimping”); People v. Dell, 283 Cal. Rptr. 361, 372 (Ct. App. 1991).
¶ 21 For these reasons, we conclude that pimping under section
18-7-206 is a continuing offense and, therefore, affirm defendant’s
conviction for pimping because his last act in the series of acts that
constituted pimping S.T. fell within the statute of limitations. See
§ 16-5-401(4).
B. The Attempted Pimping Convictions Were Not Multiplicitous
¶ 22 Defendant argues that if pimping is a continuing offense, then
his convictions for attempted pimping are multiplicitous, resulting
in a double jeopardy violation. Again, we disagree.
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1. Standard of Review and Applicable Law
¶ 23 Whether convictions are multiplicitous and violate double
jeopardy are questions of statutory interpretation that we review de
novo. Allman, ¶ 12.
¶ 24 The Double Jeopardy Clauses of the United States and
Colorado Constitutions prohibit punishing an individual twice for
the same offense. See U.S. Const. amend. V; Colo. Const. art. II,
§ 18. “Multiplicity” prohibits “the charging of multiple counts and
the imposition of multiple punishments for the same criminal
conduct” and, therefore, implicates double jeopardy principles.
Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005).
¶ 25 In these circumstances, we apply “a two-prong test for
determining the legislatively prescribed unit of prosecution and
then applying the legislative prescription to the facts of the case.”
Id. at 215. First, we examine the scope of prosecution authorized
by the statutory prescription; and second, we examine “all the
evidence introduced at trial to determine whether the evidence on
which the jury relied for conviction was sufficient to support
distinct and separate offenses.” Quintano v. People, 105 P.3d 585,
9
592 (Colo. 2005); see also Woellhaf, 105 P.3d at 215; People v.
Williams, 651 P.2d 899, 902 (Colo. 1982).
2. Discussion
¶ 26 Section 18-2-101(1), C.R.S. 2020, defines criminal attempt:
A person commits criminal attempt if, acting
with the kind of culpability otherwise required
for commission of an offense, he engages in
conduct constituting a substantial step toward
the commission of the offense. A substantial
step is any conduct, whether act, omission, or
possession, which is strongly corroborative of
the firmness of the actor’s purpose to complete
the commission of the offense.
¶ 27 Once again, the pimping statute states:
Any person who knowingly lives on or is
supported or maintained in whole or in part by
money or other thing of value earned, received,
procured, or realized by any other person
through prostitution commits pimping, which
is a class 3 felony.
§ 18-7-206.
¶ 28 Thus, we must first determine what unit of prosecution the
legislature intended to punish by proscribing a substantial step
toward pimping. See Woellhaf, 105 P.3d at 215.
¶ 29 “The unit of prosecution is the manner in which a criminal
statute permits a defendant’s conduct to be divided into discrete
10
acts for purposes of prosecuting multiple offenses.” Id. The
legislature determines the allowable unit of prosecution, which, in
turn, determines the scope of protection offered by the double
jeopardy clause. Id. Thus, we look exclusively to the statute to
determine the unit of prosecution that the legislature intended. Id.
In doing so, we again look to the plain and ordinary meaning of the
statutory language. Id.
¶ 30 Based on the plain language of the pimping statute, we
conclude that the legislature intended the unit of prosecution for
pimping to be each person from whom a defendant knowingly
derives support through acts of prostitution. In this context,
“person” is a noun in its singular form, which is defined as “[a]
human being.” Black’s Law Dictionary at 137 (emphasis added);
accord Webster’s Third New International Dictionary at 1686
(defining “person” as “an individual human being”). Thus, the
phrase “by any other person” means that a defendant accused of
pimping can be subject to individual charges of pimping per
prostitute from whom he is deriving benefit as a result of their
prostitution.
11
¶ 31 A view of the legislature’s proscription of similar criminal
conduct — child pimping — confirms our interpretation of the
pimping statute in this regard. People v. Jones, 2020 CO 45, ¶ 59
(“One of the aids we may employ is to look to other statutes where
the legislature has defined the term at issue, particularly when
those statutes should be read in pari materia.”). The statute that
proscribes pimping of a child, section 18-7-405, C.R.S. 2020,
contains nearly identical language to the pimping statute, but in
place of “money . . . realized by any other person,” the child pimping
statute reads “money . . . realized by a child.” (Emphasis added.) A
plain reading of this statute indicates that the unit of prosecution
for pimping a child is per child, because “a child” is written in the
singular. Therefore, we read “any other person” in the pimping
statute as a signal of the legislature’s intent to designate one charge
per person prostituted. See Southard v. Miles, 714 P.2d 891, 898-
99 (Colo. 1986) (construing statute by reference to similar phrase in
unrelated statute); see also Martinez v. People, 69 P.3d 1029, 1033
(Colo. 2003) (statutes concerning the same subject matter must be
construed in pari materia to ascertain legislative intent and to avoid
inconsistencies).
12
¶ 32 Accordingly, we conclude that the legislature intended that the
unit of prosecution for attempted pimping is conduct that
constitutes a substantial step toward living on money earned by
another individual through that individual’s prostitution.
¶ 33 Next, in light of this unit of prosecution, it is undisputed that
the facts and the manner of the presentation of the evidence at trial
supported defendant’s separate convictions on two counts of
attempted pimping — one for his conduct with respect to E.W. and
the other for his conduct with respect to A.W. See Woellhaf, 105
P.3d at 215.
¶ 34 Therefore, defendant’s two convictions for attempted pimping
are not multiplicitous and do not violate double jeopardy.
C. The Expert’s Testimony Was Proper
¶ 35 Defendant next contends that the district court erred by
admitting expert testimony that improperly profiled pimps. We
disagree.
1. Standard of Review and Applicable Law
¶ 36 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial
13
court abuses its discretion when its ruling is arbitrary,
unreasonable, or unfair. Id.¶ 37 Under CRE 702, a trial court may permit a qualified witness to
give expert testimony that will help the jury understand the
evidence or determine a fact in issue. In determining whether the
proposed testimony would be helpful to the jury, the trial court
must consider whether the proposed testimony is logically relevant
and whether its probative value is substantially outweighed by the
danger of unfair prejudice under CRE 403. Salcedo v. People, 999
P.2d 833, 838 (Colo. 2000). “In reviewing the court’s ruling
regarding expert testimony, we afford the evidence the maximum
probative value and minimum unfair prejudice.” People v. Conyac,
2014 COA 8M, ¶ 23.
¶ 38 Courts have generally condemned the use of profiles as
substantive evidence of guilt. See Salcedo, 999 P.2d at 837-38.
“However, the ‘profile’ label is not helpful in distinguishing
admissible from inadmissible expert testimony.” Conyac, ¶ 26.
“Instead, courts focus on the purpose for which the evidence is
offered: whether it is improper propensity evidence designed to
show the defendant’s character, or whether it instead seeks to aid
14
the jury in understanding a pattern of behavior beyond its normal
experience.” Id. In other words, “experts may testify regarding the
modus operandi of a certain category of criminals where those
criminals’ behavior is not ordinarily familiar to the average
layperson.” Id. (quoting United States v. Long, 328 F.3d 655, 666
(D.C. Cir. 2003)).
2. Additional Facts
¶ 39 The prosecution tendered and, over defense counsel’s
objection, the trial court qualified Sergeant Daniel Steele as an
expert in the areas of commercial sex trafficking, pimping, and
prostitution. Steele testified that he had no specific knowledge of
the case. In his testimony, Steele discussed the prostitution trade
generally and the nature of the relationship between pimps and
prostitutes, including
 how the various “levels of employment” in prostitution
are separated based on the act or acts that the prostitute
is willing to perform;
 the subtle and more overt ways pimps persuade or coerce
prostitutes to move up a level;
15
 the items that prostitutes often keep with them for work,
such as condoms, lubricant, makeup, a change of
clothing, and a cell phone;
 the nature of a pimp’s role, including advertising to
clients and setting up engagements between clients and
prostitutes;
 the details of engagements that pimps arrange with
clients, such as location, method of payment, and
services;
 how pimps dictate prices; and
 how other individuals, such as a recruiter and a “bottom
bitch,” can assist pimps with recruitment of new
prostitutes and arrange engagements.
3. Discussion
¶ 40 Relying on Salcedo, 999 P.2d 833, defendant contends that the
trial court erred by admitting Steele’s expert testimony because it
amounted to improper profile evidence, was irrelevant, and was
unduly prejudicial.
¶ 41 We have reviewed the record and perceive no abuse of
discretion. Steele’s testimony was proper modus operandi
16
testimony that was relevant, as it helped rebut defendant’s theory of
defense that he was merely pretending to be a pimp to entice
women to sleep with him. Indeed, Steele’s testimony “alert[ed] [the
jury] to the possibility that combinations of seemingly innocuous
events may indicate criminal behavior.” United States v. King, 703
F. Supp. 2d 1063, 1074 (D. Haw. 2010) (quoting United States v.
Johnson, 735 F.2d 1200, 1202 (9th Cir. 1984)). Moreover, the
testimony helped place other witnesses’ testimony — namely, S.T.’s
and E.W.’s — “into context and provided the jury a means to assess
their credibility.” United States v. Brooks, 610 F.3d 1186, 1195-96
(9th Cir. 2010) (the trial court properly admitted detective’s expert
testimony on “the business of prostitution and the relationships
between pimps and prostitutes”); see also Conyac, ¶ 28 (“[W]here
defendant denied that he committed any offense, the fact that his
modus operandi was consistent with the modus operandi of sex
offenders generally made it more likely than not that he committed
the offenses at issue.”).
¶ 42 We reject defendant’s contention that Steele’s testimony was
improper profile testimony that presented an “undue risk that the
jurors would substitute Steele’s profile testimony for their own
17
opinion.” Steele testified that he was not involved in the
investigation of this case and did not opine as to whether defendant
was a pimp or had the characteristics of one. See People v.
Ramirez, 1 P.3d 223, 227 (Colo. App. 1999) (distinguishing between
improper profile evidence and permissible modus operandi
evidence); cf. Salcedo, 999 P.2d at 838 (a witness may not offer an
“ill-defined compilation[]” of characteristics common to a certain
type of offender and then opine that because the defendant has
those characteristics, he is likely to be that type of offender).
¶ 43 Further, we are not persuaded that Steele’s testimony was
unduly prejudicial under CRE 403. The testimony had significant
probative value, as it bore on defendant’s theory of defense and the
elements of the crimes charged. We discern no record support for
defendant’s contentions that Steele’s testimony “likely inflamed the
passions and sympathies of the jurors,” was misleading, or invited
jurors “to substitute Steele’s . . . testimony for their own opinion of
whether [defendant] met the legal elements of pimping.” In sum,
affording the testimony the maximum probative value and the
minimum unfair prejudice, as we are required to do, we cannot say
the trial court abused its discretion by admitting it. Conyac, ¶ 23.
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III. Conclusion
¶ 44 The judgment of conviction is affirmed.
JUDGE WELLING and JUDGE BROWN concur.
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