v. Ross

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
May 23, 2019

2019COA79

No. 17CA0204, People v. Ross — Crimes — Solicitation for
Child Prostitution; Criminal Law — Mens Rea

A division of the court of appeals approves two rulings made

by the trial court and, in the process, reaches three conclusions

about the crime of soliciting for child prostitution, § 18-7-402,

C.R.S. 2018. First, the division concludes that the crime is a

specific intent crime, disagreeing with the conclusion in People v.

Emerterio, 819 P.2d 516, 518-19 (Colo. App. 1991), rev’d on other

grounds sub nom. People v. San Emerterio, 839 P.2d 1161 (Colo.

1992), which determined that it was a general intent crime.

Second, the division concludes that section 18-7-407, C.R.S. 2018,

does not act to relieve the prosecution of its obligation to prove that

the defendant solicited another for the purpose of child prostitution.
Third, the division concludes that the same statute did not prevent

the trial court from instructing the jury on the lesser crime of

soliciting for prostitution, § 18-7-202, C.R.S. 2018.
COLORADO COURT OF APPEALS 2019COA79

Court of Appeals No. 17CA0204
City and County of Denver District Court No. 15CR5842
Honorable Andrew P. McCallin, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Phillip L. Ross,

Defendant-Appellee.

RULINGS APPROVED

Division VII
Opinion by CHIEF JUDGE BERNARD
Márquez* and Vogt*, JJ., concur

Announced May 23, 2019

Elizabeth McCann, District Attorney, Johanna G. Coats, Deputy District
Attorney, Denver, Colorado, for Plaintiff-Appellant

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 This is an appeal by the prosecution in a criminal case. The

prosecution asks us to disapprove two rulings that the trial court

made during the trial of defendant, Phillip L. Ross. It contends that

the court erred when it (1) partially granted defendant’s motion for a

judgment of acquittal and dismissed two counts of soliciting for

child prostitution under section 18-7-402(1), C.R.S. 2018; and

(2) submitted the lesser offense of soliciting for prostitution under

section 18-7-202, C.R.S. 2018, for the jury’s consideration.

Because we conclude that the court did not err, we approve these

two rulings.

I. Introduction

¶2 Consider the parallels between the group of statutes generally

pertaining to prostitution and the group of statutes specifically

pertaining to prostitution of children. (In this context, a child is a

“person under the age of eighteen years.” § 18-7-401(2), C.R.S.

2018.)

¶3 First, the two groups include many of the same crimes, but

the legislature penalizes the ones with child victims more severely.

For example, the crime of soliciting another for prostitution is a

1
 class 3 misdemeanor. § 18-7-202(2). The offense of soliciting for

child prostitution is a class 3 felony. § 18-7-402(2).

¶4 Second, the elements of the offenses are similar. For example,

the crime of soliciting another for prostitution is committed when a

person either “[s]olicits another for the purpose of prostitution,”

§ 18-7-202(1)(a), or “[a]rranges or offers to arrange a meeting of

persons for the purpose of prostitution,” § 18-7-202(1)(b). The

offense of soliciting for child prostitution occurs if a person either

“[s]olicits another for the purpose of [child prostitution],”

§ 18-7-402(1)(a), or “[a]rranges or offers to arrange a meeting of

persons for the purpose of [child prostitution],” § 18-7-402(1)(b).

¶5 Third, both groups include statutes that prohibit specified

conduct with prostitutes or with child prostitutes. Compare

§ 18-7-203(1)(a), C.R.S. 2018 (pandering), and § 18-7-205(1)(a), (2),

C.R.S. 2018 (patronizing a prostitute), with § 18-7-403(1), (2),

C.R.S. 2018 (pandering of a child), and § 18-7-406(1)(a), C.R.S.

2018 (patronizing a prostituted child).

¶6 But, as is relevant to our analysis in this case, the group of

child prostitution statutes includes something that the group of

general prostitution statutes does not. Section 18-7-407, C.R.S.

2
 2018, states that, in “any criminal prosecution under sections

18-7-402 to 18-7-407, it shall be no defense that the defendant did

not know the child’s age or that he reasonably believed the child to

be eighteen years of age or older.” We shall refer to this statute as

“section 407.”

¶7 This appeal asks us to resolve three questions arising out of

the intersection of the crime of soliciting for child prostitution and

section 407.

¶8 What is the function of the phrase “for the purpose of,” as

used in “[s]olicits another for the purpose of [child prostitution]”

and “[a]rranges or offers to arrange a meeting of persons for the

purpose of [child prostitution]?” § 18-7-402(1)(a), (b). We conclude

that it means that a defendant must have had the specific intent to

solicit another for child prostitution.

¶9 What effect does section 407 have on the crime of soliciting for

child prostitution? We conclude that, unlike some other crimes,

such as pandering of a child or patronizing a prostituted child,

soliciting for child prostitution does not require the prosecution to

prove that the victim was a child. Rather, the gravamen of the

offense is the defendant’s intent to solicit for the purpose of child

3
 prostitution, and it does not matter whether the “other” whom the

defendant solicits is actually a child or is actually an adult. As a

result, section 407 does not have any effect on the prosecution’s

obligation to prove the defendant’s intent, and it does not turn the

crime of soliciting for child prostitution into a strict liability offense.

¶ 10 Does section 407 bar trial courts from submitting instructions

on the lesser offense of soliciting another for prostitution in cases in

which defendants are charged with soliciting for child prostitution?

We conclude that, under the facts of this case, the answer to this

question is “no.”

II. Background

¶ 11 Two girls under the age of eighteen, sometimes working with

others, used a website to place several advertisements announcing

their willingness to perform sex acts in exchange for money. The

different advertisements listed varying ages for the girls, but they all

read that the girls were at least nineteen years old.

¶ 12 After seeing the advertisements, defendant texted the girls and

negotiated a price that he would pay in exchange for sex acts.

When the police arrested him, he admitted texting the girls to solicit

4
 sex, but he maintained that he had thought he was contacting

“adult females.”

¶ 13 As is pertinent to this appeal, the prosecution charged him

with four counts of soliciting for child prostitution: two under

section 18-7-402(1)(a), each naming one of the girls, and two under

section 18-7-402(1)(b), each naming one of the girls.

¶ 14 After the prosecution’s case-in-chief, defense counsel moved

for judgment of acquittal on the four soliciting counts. Counsel

argued that the prosecution had not presented any evidence to

prove the culpable mental state of the crime of soliciting for child

prostitution, which was that defendant had solicited or arranged a

meeting of persons for the purpose of child prostitution. The

prosecutor replied that defendant’s position was untenable because

section 407 prevented him from raising the defenses that he did not

know the girls’ ages or that he reasonably believed the girls were at

least eighteen years old.

¶ 15 The trial court agreed with the defense. The court decided

that section 407 prevented defendant from presenting a defense

that he “believed that the prostitute was of legal age,” but that it did

5
 not relieve the prosecution of its burden to prove that the soliciting

or arrangement was “for the purposes of child prostitution.”

¶ 16 Because it was undisputed that the prosecution had not

presented any direct evidence of defendant’s intent, the court

focused on circumstantial evidence, such as whether defendant

knew or should have known about the two girls’ ages. The court

concluded that the jury “could reasonably determine that [the first

girl] was underage” based on a photograph of her in the

advertisements. But there was no photograph of the second girl,

and the only information about her in the advertisements was that

she was nineteen or twenty years old. So the court decided that the

prosecution had not presented any evidence that defendant had

solicited the second girl “for the purpose of child prostitution.” It

then entered a judgment of acquittal on the two counts naming the

second girl, but it denied the motion on the two counts naming the

first girl.

¶ 17 During the instruction conference, defense counsel asked the

court to instruct the jury on the lesser offense of soliciting for

prostitution under section 18-7-202(1)(a) and (b). As the basis for

this request, counsel asserted that the jury could conclude that

6
 defendant’s “purpose here was to solicit an adult prostitute,” not a

child prostitute.

¶ 18 The prosecutor objected. She replied that giving the

instruction would violate section 407 by allowing defendant to rely

on defenses that section 407 expressly prohibited.

¶ 19 The trial court again agreed with the defense, reading the

soliciting for child prostitution statute to require the prosecution to

show that “the defendant intended to solicit a child for prostitution.”

(Emphasis added.) Later, it ruled that the prosecution “must show

some mental state, that what the defendant was doing was

arranging or soliciting a prostitute for purposes of child

prostitution.” (Emphasis added.) It later instructed the jury as

defense counsel had requested.

¶ 20 The jury hung on the soliciting for child prostitution counts.

But it told the court that it could reach a unanimous decision on

the lesser counts. Rather than accept the verdicts on the lesser

counts, the prosecutor asked the court to declare a mistrial. It did.

¶ 21 Before the retrial on the remaining counts, the prosecution

sought our supreme court’s review via an original proceeding under

C.A.R. 21. The supreme court denied this request.

7
¶ 22 The prosecution then offered to resolve this case by way of a

plea disposition. Defendant accepted, pleading guilty to two

misdemeanor counts of soliciting another for prostitution.

¶ 23 Relying on section 16-12-102(1), C.R.S. 2018, which allows

the prosecution to appeal “any question of law,” the prosecution

filed this appeal.

III. Analysis

¶ 24 The prosecution asserts that the trial court was mistaken

when it decided that, to prove the crime of soliciting for child

prostitution, the prosecution had to show that the person whom “he

was soliciting was a child.” The court, the prosecution continues,

should have instead applied section 407. This means that the

prosecution only had to prove that defendant had knowingly

solicited a prostitute and that this person was under eighteen years

old. In other words, the prosecution contends that, because of

section 407, the prosecution did not have to prove that defendant

had any culpable mental state in connection with the solicited

person’s age: as far as that element is concerned, soliciting for child

prostitution is a strict liability crime.

8
¶ 25 But we respectfully disagree with the prosecution’s

characterization of what the trial court did. Rather, after reviewing

the transcript, we agree with defendant’s description of the court’s

ruling: the court did not dismiss the two soliciting for child

prostitution charges naming the second girl because defendant did

not know that she was a child, but because there was no evidence

presented at trial that would have allowed the jury to find that he

had solicited her for the purpose of child prostitution. Looking at

the court’s rulings from this perspective, we conclude that the court

did not err when it (1) granted defendant’s motion for a judgment of

acquittal on two of the soliciting for child prostitution counts; and

(2) instructed the jury on the lesser offense of soliciting for

prostitution.

A. What Does the Phrase “for the [P]urpose of [Child
Prostitution]” in Section 18-7-402(1) Mean?

1. Standard of Review and Principles of Statutory Interpretation

¶ 26 We review issues of statutory interpretation de novo. People v.

Ortiz, 2016 COA 58, ¶ 15. When we interpret statutes, we must

ascertain and give effect to the legislature’s intent. Colo. Dep’t of

Revenue v. Creager Mercantile Co., 2017 CO 41M, ¶ 16. In doing so,

9
 “[w]e give effect to words and phrases according to their plain and

ordinary meaning[s].” Denver Post Corp. v. Ritter, 255 P.3d 1083,

1089 (Colo. 2011). But, “[w]ords and phrases that have acquired a

technical or particular meaning . . . [are] construed accordingly.”

§ 2-4-101, C.R.S. 2018. If a statute’s language is clear, we apply it

as the legislature wrote it. Denver Post Corp., 255 P.3d at 1089.

2. People v. Emerterio

¶ 27 Normally, a defendant must act with a culpable mental state

to be criminally liable. See Gorman v. People, 19 P.3d 662, 665

(Colo. 2000). A division of this court has held that the culpable

mental state for the crime of soliciting for child prostitution is

“knowingly.” People v. Emerterio, 819 P.2d 516, 518-19 (Colo. App.

1991), rev’d on other grounds sub nom. People v. San Emerterio, 839

P.2d 1161 (Colo. 1992). The division decided that “[t]he gist of the

crime of solicitation is that the defendant is aware of what he is

doing.” Id. So “knowingly,” and not “intentionally,” as the

defendant had argued, was the proper culpable mental state. Id.

The division therefore concluded that the court did not commit

plain error when it “instructed the jury that the requisite mens rea

was that of ‘knowingly.’” Id.

10
 3. “[F]or the [P]urpose of [Child Prostitution]”

¶ 28 But there now appears to be a debate about the application of

the “knowing” culpable mental state to the crime of soliciting for

child prostitution. When the division decided Emerterio, the

relevant model jury instruction, CJI-Crim. 24:03 (1983), read that

the culpable mental state was “knowingly.”

¶ 29 The Colorado Supreme Court Model Criminal Jury

Instructions Committee recently altered this position, writing that it

“is of the view that section 18-7-402(1)(a) describes a culpable

mental state by requiring that the solicitation be for the purpose of

child prostitution.” COLJI-Crim. 7-4:01 cmt. 3 (2018); see also

People v. Ramos, 2017 COA 100, ¶ 20 (“While we are not bound by

the model jury instructions, they are persuasive.”). As a result, the

model jury instruction for soliciting for child prostitution “does not

supplement the statutory language by imputing the [culpable

mental state] of ‘knowingly.’” COLJI-Crim. 7-4:01 cmt. 3 (emphasis

added).

¶ 30 We conclude, for the following reasons, that the phrase “for

the purpose of” is the equivalent of “intentionally.”

11
¶ 31 First, “purpose” means “[a]n objective, goal, or end.” Black’s

Law Dictionary 1431 (10th ed. 2014). The word “purposeful” means

“[d]one with a specific purpose in mind; deliberate.” Id. A person

acts with specific intent in Colorado when she acts “intentionally” or

“with intent,” meaning that one’s “conscious objective is to cause

the specific result proscribed by the statute defining the offense.”

§ 18-1-501(5), C.R.S. 2018. These definitions correspond. For

example, to act “intentionally” means that one has a conscious

objective to cause a specific result; a purpose is one’s objective; and

being “purposeful” means that one acts with such an objective in

mind.

¶ 32 Second, the culpable mental states in the Colorado Criminal

Code are based on the Model Penal Code. See People v. Derrera,

667 P.2d 1363, 1366-67 (Colo. 1983). And, in the Model Penal

Code, the highest level of criminal culpability is “purposely.” Model

Penal Code § 2.02(2)(a) (Am. Law Inst., Official Draft and Revised

Comments 1985).

¶ 33 “Purposely” means “with a deliberate or an express purpose:

on purpose: INTENTIONALLY, DESIGNEDLY, EXPRESSLY.”

Webster’s Third New International Dictionary 18a, 1847 (2002) (“A

12
 cross-reference [in capital letters] following a symbolic colon is a

synonymous cross-reference.”). The meaning of this adverb is

predictably related to the meanings of the noun “purpose” and the

adjective “purposeful.”

¶ 34 The Model Penal Code’s definition of “purposely” is comparable

to Colorado’s definition of “intentionally.” As is pertinent to our

analysis, the Code reads that “[a] person acts purposely” when with

respect to the nature or the result of his conduct, “it is his

conscious object to engage in conduct of that nature or to cause

such a result.” Model Penal Code § 2.02(2)(a). Indeed, the Code

expressly equates the terms “purposely” and “intentionally”:

“‘intentionally’ or ‘with intent’ means purposely.” Model Penal Code

§ 1.13(12). From the perspective of the drafters of the Code, “[t]his

difference” between “intentionally and purposely” is “one of

terminology alone.” Id. § 2.02 cmt. 2, n.11.

¶ 35 Although section 407 uses a noun — the word “purpose” in

the phrase “for the purpose of” — authority defining the adverb

“purposely” is helpful in determining the meaning of the phrase “for

the purpose of.” See Schmuck v. State, 406 P.3d 286, 301 (Wyo.

2017)(Either the noun “malice” or the adverb “maliciously” “will

13
 convey the same underlying meaning.”); Roget’s International

Thesaurus, § 653.9-.11, at 501 (4th ed. 1977)(“intentionally,”

“purposely,” “with purpose,” “purposeful,” and “on purpose” are

synonyms).

¶ 36 In the context of culpable mental states, the congruity between

the two terms is borne out by decisions from courts in other

jurisdictions, which have construed the adverb “purposely” and the

phrase “for the purpose of” to mean much the same thing. Compare

United States v. Bailey, 444 U.S. 394, 405 (1980)(“In a general

sense, ‘purpose’ corresponds loosely with the common-law concept

of specific intent . . . .”), and United States v. Esch, 832 F.2d 531,

536 (10th Cir. 1987)(same), and United States v. Wright, No. 1:12-

CR-130, 2013 WL 164096, at *7 (W.D. Mich. Jan. 15, 2013)(“‘For

the purpose of’ means that the defendant acted with the specific

intent of creating visual depictions of sexually explicit conduct.”),

aff’d, 774 F.3d 1085 (6th Cir. 2014), and People v. Hering, 976 P.2d

210, 213 (Cal. 1999)(the phrase “for the purpose of” “denot[es]

specific intent crimes”), with State v. Goebel, 83 S.W.3d 639, 644

(Mo. Ct. App. 2002)(“purposely” is defined as “intentional”), and

State v. Williams, 503 N.W.2d 561, 566 (Neb. 1993)(“In the context

14
 of a criminal statute, ‘intentionally’ means . . . purposely . . . .”),

and State v. Holmes, 920 A.2d 632, 634 (N.H. 2007)(“[T]he Criminal

Code generally uses the term ‘purposely’ in place of specific

intent . . . .”), and State v. Huff, 763 N.E.2d 695, 701 (Ohio Ct. App.

2001)(The definition of “purposely” “require[s] the offender to have

the specific intent to cause a certain result.”). At least one

commentator has treated the adverb and the phrase

interchangeably. 1 Wayne R. LaFave, Substantive Criminal Law

§ 5.1(a), at 333 (2d ed. 2003).

¶ 37 Third, our supreme court has, in other contexts, interpreted

the word “purpose” to mean “intent.” In People v. Frysig, 628 P.2d

1004, 1010 (Colo. 1981), the court observed that “the word

‘purpose’ as used in the criminal attempt statute is the equivalent

of the common meaning of the word ‘intent.’” In People v. Childress,

2015 CO 65M, ¶ 21, the court recognized that the Model Penal Code

described the “most culpable[] mental state giving rise to criminal

liability” as “purposely” rather than as “intentionally.”

¶ 38 Fourth, courts in other jurisdictions view “intentionally” and

“purposely” as synonyms when discussing culpable mental states.

See, e.g., United States v. Rose, 896 F.3d 104, 112 (1st Cir.

15
 2018)(“In the context of criminal law, ‘intentionally’ can be

synonymous with ‘purposely . . . .’”); United States v. Gracidas-

Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000)(“In general, ‘purpose’

corresponds to the concept of specific intent . . . .”).

4. People v. Vigil

¶ 39 We are not persuaded that People v. Vigil, 127 P.3d 916 (Colo.

2006), dictates a different result. Vigil addressed whether the crime

of sexual assault on a child, described in section 18-3-405(1),

C.R.S. 2018, when combined with the definition of “sexual contact,”

found in section 18-3-401(4), C.R.S. 2018, creates an intentional

culpable mental state requirement or a knowing one.

¶ 40 On the “intentional” side of the scale was the definition of

“sexual contact,” which is the “knowing touching of the victim’s

intimate parts by the actor . . . if that sexual contact is for the

purposes of sexual arousal, gratification, or abuse.” § 18-3-401(4)

(emphasis added). The supreme court observed that the “for the

purposes” language “suggest[ed] that the offense require[d] specific

intent.” Vigil, 127 P.3d at 931.

¶ 41 On the “knowing” side of the scale, the court pointed to the

use of the terms “knowing” or “knowingly” in both sections

16
 18-3-401(4) and 18-3-405(1). It also described statements by

legislators who discussed the reasons for inserting those terms.

Vigil, 127 P.3d at 932-33.

¶ 42 The court then concluded that the factors on the “knowing”

side of the scale outweighed those on the “intentional” side. The

legislative history demonstrated that, “when the General Assembly

inserted the word ‘knowingly’ into the definition of the offense and

the word ‘knowing’ into the definition of ‘sexual contact,’ its intent

was to provide a mental-state requirement of general intent.” Id. at

933.

¶ 43 But the culpable mental state “knowing” does not appear in

section 18-7-402. So that statute is unlike the statutes discussed

in Vigil, in which the legislature specifically inserted the terms

“knowing” and “knowingly.” As the Colorado Supreme Court Model

Criminal Jury Instructions Committee suggested, this means that

“for the purpose of” functions as the culpable mental state of the

crime of soliciting for child prostitution. COLJI-Crim. 7-4:01

cmt. 3.

17
 5. Emerterio Revisited

¶ 44 Where does this leave Emerterio? We are not bound by its

holding. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App.

2008)(one division of the court of appeals is not bound by another’s

decision). We respectfully disagree with the Emerterio division’s

observation that the crime of soliciting for child prostitution “fails to

specify the requisite [culpable mental state] for the commission of

this offense.” 819 P.2d at 518. Rather, as we have demonstrated

above, the culpable mental state of specific intent is found in the

phrase “for the purpose of.” Interestingly, the Emerterio division did

not address what effect the “for the purpose of” language might

have had on the applicable culpable mental state.

¶ 45 We now turn to the prosecution’s contention that section 407

“forecloses” us from concluding that any culpable mental state

“applies to the element that the victim is a child.”

B. What Effect Does Section 407 Have on the Crime of Soliciting
for Child Prostitution?

¶ 46 Having determined that the crime of soliciting for child

prostitution is a specific intent crime, we necessarily reject the

18
 prosecution’s contention that it is a strict liability crime as far as

the victim’s age is concerned.

¶ 47 Looking to the plain language of the crime of soliciting for

child prostitution, neither the victim’s actual age nor the

defendant’s knowledge of, or belief concerning, the victim’s age is an

element of the crime. “The focus of the crime is,” instead, “the

initial solicitation” or arrangement, and the defendant’s

accompanying intent, not “the ultimate sexual act which might

occur.” Emerterio, 819 P.2d at 518. The crime is therefore

complete when the defendant solicits another or arranges or offers

to arrange a meeting with the specific intent of engaging in child

prostitution. See People v. Mason, 642 P.2d 8, 13 (Colo. 1982)(the

crime of soliciting for prostitution “is complete when the offender

solicits another for prostitution, [or] arranges or offers to arrange a

meeting of persons for the purpose of prostitution”).

¶ 48 To satisfy its burden, the prosecution must present evidence

that the defendant had the specific intent of soliciting for child

prostitution. Evidence that the defendant knew, or should have

known, that the person he was soliciting was underage could be

circumstantial evidence that his purpose was to engage in child

19
 prostitution. See People v. Collie, 995 P.2d 765, 773 (Colo. App.

1999)(evidence of the defendant’s intent is often proved by

circumstantial or indirect evidence). Such evidence is not

necessarily difficult to come by. As the Roman historian Livy once

wrote, “Dishonest dealing, even if at the beginning it has been

somewhat cautious, generally betrays itself in the long run.” Titus

Livius, The History of Rome, Vol. 6, 44.15 (Rev. Canon Roberts

trans., J.M. Dent & Sons, Ltd., London 1905).

¶ 49 We therefore conclude, echoing the trial court, that section

407 and the crime of soliciting for child prostitution work together

in the following way. Section 407 prevents a defendant from raising

the defense that he believed that the prostitute was of legal age, but

it does not relieve the prosecution of its obligation to prove that the

defendant’s specific intent was to solicit another, or to arrange or to

offer to arrange a meeting, “for the purpose of child prostitution.”

As a result, the trial court applied the proper legal standard when it

decided to dismiss the two soliciting for child prostitution counts

naming the second girl.

20
¶ 50 We now turn to the question whether the trial court erred

when it instructed the jury during defendant’s trial about the lesser

offense of soliciting for prostitution.

C. Does Section 407 Bar Trial Courts from Submitting
Instructions on the Lesser Offense of Soliciting Another for
Prostitution in Cases in Which Defendants Are Charged with
Soliciting for Child Prostitution?

¶ 51 The prosecution contends that the trial court erred when it

instructed the jury on the lesser offense of soliciting for

prostitution. § 18-7-202(1)(a)-(b). We disagree.

¶ 52 We review a trial court’s decision to instruct a jury on a lesser

offense for an abuse of discretion. People v. Jimenez, 217 P.3d 841,

870 (Colo. App. 2008). A court may abuse its discretion in

instructing the jury if its decision is based on a misunderstanding

or misapplication of the law. People v. Smalley, 2015 COA 140,

¶ 59.

¶ 53 A defendant is entitled to an instruction about a lesser offense

if “there is a rational basis for a verdict acquitting the defendant of

the offense charged and convicting him of the included offense.”

§ 18-1-408(6), C.R.S. 2018. A trial court need not give a lesser

included offense instruction “if the element that distinguishes the

21
 greater from the lesser offense is uncontested [because] the jury

cannot rationally acquit the defendant of the greater offense and

convict him . . . of the lesser.” People v. Hall, 59 P.3d 298, 299-300

(Colo. App. 2002).

¶ 54 The general crime of soliciting another for prostitution and the

specific crime of soliciting for child prostitution set forth the same

means to commit those respective crimes: (1) soliciting another; or

(2) arranging or offering to arrange a meeting of persons. The

difference lies in the defendant’s purpose — whether the defendant

intended to solicit a child for prostitution.

¶ 55 The prosecution asserts that, because it was uncontroverted

that the girls in this case were under eighteen years old, there was

no rational basis for the jury in this case to acquit defendant of

soliciting for child prostitution and convict him of soliciting for

prostitution. And, the prosecution continues, because defendant

could not claim ignorance of the age of the first girl, who had

appeared in the photograph, under section 407, the court should

not have instructed the jury about the lesser offense of soliciting for

prostitution. In other words, the prosecution submits that the

difference between these two offenses lies in the age of the person

22
 solicited. We disagree because, as we have concluded above, the

focus of the crime of soliciting for child prostitution is on the

defendant’s intent, not on the age of the person solicited.

¶ 56 We therefore conclude that the trial court did not abuse its

discretion when it instructed the jury on the offense of soliciting for

prostitution because the court did not misunderstand or misapply

the law. See Smalley, ¶ 59; Jimenez, 217 P.3d at 870. The jury

could have rationally acquitted defendant of the greater offense of

soliciting for child prostitution if it had found that he did not intend

to solicit a child. And the jury could have rationally found him

guilty of the lesser offense of soliciting for prostitution if it had

found that his intent was merely to solicit another for prostitution.

¶ 57 The trial court’s rulings are approved.

JUDGE MÁRQUEZ and JUDGE VOGT concur.

23