People v. Cardenas

JUDGE BERGER,

specially concurring.

T 60 I agree with the majority that defendant's conviction of the crime of trafficking in children, section 18-3-502(1)(a), C.R.S.2018, must be reversed for insufficient evidence. But I cannot agree with the construction of the statute imposed by the majority, which fails to implement the intent of the General Assembly and is neither compelled by any constitutional command nor by any principle of statutory construction.1

161 Like the majority, I begin with the language of the statute. The statute criminalizes the sale, lease, exchange, or barter of a child. None of those terms, other than "child," is defined in the statute. The lack of statutory definitions, however, is no impediment to the application of the statute as written. Because these are terms of common usage, within the normal contemplation of jurors, looking to the dictionary for definitions is appropriate. See People v. Gallegos, 260 P.3d 15, 22 (Colo.App.2010) ("When a statute does not define its terms but the words used are terms of common usage, we may refer to dictionary definitions to determine the plain and ordinary meaning of those words." (internal quotation marks omitted)).

162 After locating dictionary definitions for the terms "sell," "exchange," "barter," and "lease," the majority properly recognizes that no one owns a child in the sense that one owns property, not even a parent. But from that truism, the majority leaps to the conclusion that only if someone has legal or physical custody of the child can there be a criminal conviction under the statute. In so doing, the majority effectively limits the reach of the statute to the permanent sale of a child for purposes of black market adoption or the sale or long-term lease of a child into sexual slavery.

*44063 Colorado has a separate statute that criminalizes the sale of a child for adoption. § 19-5-218(1)(a), C.R.8.2018 (prohibiting the receipt of "money or other consideration or thing of value in connection with the relinquishment and adoption" of a child). That the General Assembly intended the trafficking in children statute to address the same issue-the transfer of the custody of a child for money-seems unlikely.2

{64 Nor is assuming that the General Assembly had any desire to limit the reach of the trafficking statute to the cireumstances described by the majority, in which a child is sold or leased into sexual slavery, reasonable. Yet, the majority's construction of the statute immunizes from the reach of the statute a great deal of heinous conduct that the General Assembly had every right to prohibit-conduct which I am convinced the General Assembly intended to criminalize.

1 65 If the statute is limited to prohibiting only the transfer of custody for money, the conduct described by an expert in this case as constituting a typical trafficking situation-the recruitment and grooming of a child, often by the use of force, fraud, or coercion, to manipulate the child into performing sexual acts-often would be punishable only under the pimping of a child, pandering, and inducement of child prostitution statutes. However, the scenario described by the expert clearly involves conduct that goes beyond that covered by these three statutes. See $ 18-7-405, C.R.S.2013 (defining "pimping of a child"); § 18-7-203(1), C.R.S.2018 (defining "pandering"); People v. Hansen, 708 P.2d 468, 4740 (Colo.App.1985) (defining "inducement of child prostitution" under section 18-7-405.5, C.R.S.2018).

T66 Additionally, almost every other state's human trafficking statute defines "trafficking" to encompass the type of conduct the expert described. Seq, eg., Tex. Penal Code Ann. §§ 204.01-20A.02(a2)8) (West 2013) (defining " '[tJraffic" as "to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means" and providing that a person commits the offense of "trafficking of persons" if, among other things, he or she "knowingly traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in" prostitution, promotion of prostitution, or compelling prostitution). I do not agree with the majority that the difference in language in Colorado's trafficking statute necessitates the conclusion that the General Assembly did not intend "trafficking" to mean what it does in almost every other state.

T67 Moreover, the language of Colorado's trafficking in adults statute, section 18-3-501(1)(a), C.R.8.2013, is the same as that of the trafficking in children statute. This similarity also supports the conclusion that the General Assembly intended to criminalize conduct that does not reach the level of transferring the custody of a child for money. Other than situations in which an adult is under the legal guardianship of another person, to speak of transferring the physical and legal custody of an adult makes no sense. Because there is no indication that the language in section 18-8-501 should be interpreted differently than the same language in section 18-8-502, the terms "sell," "exchange," "barter," and "lease" in both statutes must mean something other than the transfer of custody for money. See Marquez w. People, 2018 CO 58, T8, 311 P.3d 265 ("[In the absence of some express indication to the contrary, a term or provision that is part of a greater statutory scheme should be interpreted, to the extent possible, harmoniously with the other provisions and purpose of that scheme.").

(68 The limited legislative history that is available further shows that the limiting construction placed upon the statute by the majority is unwarranted. In 2010, the General Assembly enacted S.B. 140, which moved the *441trafficking statutes into the article of the criminal code that addresses crimes against the person. Ch. 156, see. 1, §§ 18-8-501, 18-3-502, 2010 Colo. Sess. Laws 535-36. In testimony before the Senate Committee on the Judiciary, Senator Shawn Mitchell, the prime sponsor of S.B. 140, explained that the bill's intent was to strengthen the laws already on the books and allow perpetrators to be more aggressively prosecuted and more thoroughly punished. Hearing on S.B. 140 before the S. Judiciary Comm., 67th Gen. Assemb., 2d Sess. (Feb. 17, 2010).

1 69 Senator Mitchell also discussed a proposal amending the trafficking statutes to read: "A person commits trafficking in children [or adults] i#f he or she: [slells, exchanges, barters, or leases a child [or adult] by means of force, fraud, or coercion ...." Id.; S.B. 140, 67th Gen. Assemb., 2d Reg. Sess. (Colo. 2010) (as assigned to S. Comm. on Judiciary, Feb. 4, 2010) (emphasis added). In explaining why the added the language was contemplated-to distinguish selling someone from the possibly legal situation of selling his or her labor, thereby avoiding potential vagueness challenges-Senator Mitchell stated, "I believe with or without the inserted phrase, a case of genuine control of another human being of servitude will be able to be proved." Hearing on S.B. 140 before the S. Judiciary Comm. (emphasis added). The Committee ultimately decided not to include the phrase because of concerns that it would make the law more difficult to prosecute. Id.

T 70 This legislative history shows that the General Assembly sought to enact a very broad trafficking in children statute, indeed even broader than the sister-state statutes cited by the majority for the proposition that the Colorado statute should be limited in reach. See Vensor v. People, 151 P.3d 1274, 1279 (Colo.2007) ("While by no means conclusive, the testimony of a bill's sponsor concerning its purpose and anticipated effect can be powerful evidence of legislative intent.").

T71 In reaching its limiting construction, the majority also distinguishes between the sale of the child and the sale of services by the child. It then concludes that the statute applies to the sale of a child, not the sale of the child's services; because a person cannot "own" a child, the statute must apply to the transfer of custody of a child for money. In my view, the distinction between the sale of a child and the sale of the child's services, in the context of the activities at issue in a sex trafficking case, is a distinction without a difference. The "services" engaged in by a victim of sex trafficking are not ordinary services. They are sexual "services." In a very real sense, either the victim or the trafficker, or both, are selling the victim's body to third persons. Under such cireum-stances, the distinction relied upon by the majority has little meaning.

72 A person who has sufficient practical control over a child may use that control to cause the child to provide sexual services to other persons. The expert who testified in this case explained that traffickers find victims who are homeless or runaways, lacking parental figures, or addicted to drugs. They then exploit them by offering to fill their needs, but only if they perform sexual services in exchange.

1 73 For instance, traffickers might tell the victims that if they do not perform, they will no longer provide them with the basic necessities of life-shelter, food, and clothing. Or they might threaten to take away the intimacy they had once shown the victims, as traffickers often will feign that they care about the victims or even love them. In this way, according to the expert, traffickers control and manipulate the victims in order to sell them: "They are sold to other people, they are selling themselves to other people and then the trafficker gets them back and resells them.... commodity, being the human being, is being sold over and over and over again for profit every time."

T74 I agree with the majority that the prosecution must prove something beyond arranging for another person to purchase sexual services performed by a child to satisfy the elements of the crime of trafficking in children. To give effect to what I perceive as the intended broad reach of the statute, I would hold that a defendant violates the statute when (a) he or she sells, barters, exchanges, or leases a child; (b) in cireumstances where the defendant has a *442substantial degree of practical control over the activities of the child; and (c) receives any money or other consideration or thing of value as a result of such transaction.

T75 The required evidence of practical control need not be physical control. Evidence that the defendant had psychological control over the child is sufficient. The evidence sufficient to support a finding of practical control may vary depending upon the child's age, maturity, and access to other resources, but the critical factor is the defendant's ability to manipulate the child into sexual exploitation.

176 Here, little or no evidence of such practical control over the victim was presented to the jury. To the contrary, the evidence that was presented demonstrated that the victim continued to live most of the time with her parents; she was not dependent upon defendant either for shelter or food. She testified she always had the capacity to leave defendant's apartment and always had someplace to go. She had a boyfriend other than defendant, and her parents apparently were in the picture, potentially giving her the emotional support that would negate the type of psychological control necessary to give meaning to the statutory terms. Hence, I agree with the majority that the evidence is not sufficient to sustain a conviction for trafficking in children.

177 I note that the victim spoke at defendant's sentencing. At that time, she addressed precisely the type of control that I believe is central to a conviction under the statute. She stated that defendant sought her out and purposefully targeted her during a very difficult time in her life when she was extremely vulnerable, in part because both she and her father had just lost their jobs. She explained that defendant lured her by making elaborate promises to take care of her and then forced her into unwanted sexual acts. He became furious and threatening when she talked back to him, he stole the money she had in her wallet, and he made her feel worthless. And she described the fear and terror that she felt when she was in his grasp.

178 Had she given such testimony during the guilt phase of the trial, I would vote to affirm the trafficking conviction. But statements made at the sentencing phase cannot substitute for evidence presented to the jury at the guilt determination phase. Nor can testimony by a witness who is qualified as an expert in the trafficking of children substitute for such "control" testimony. While it may be appropriate for such an expert to opine on the general characteristics and devices commonly utilized by persons engaging in trafficking activities, the expert cannot provide factual evidence regarding the actual control of the victim by defendant.

T79 For these reasons, I concur in the majority's conclusion that the evidence presented to the jury on the trafficking in children charge was insufficient as a matter of law to sustain defendant's conviction of that crime. I respectfully disagree with the majority's analysis in reaching that conclusion and the limiting construction it places upon the statute. I concur in all other portions of the majority's opinion.

. Defendant did not raise any constitutional challenges to his conviction, such as an equal protection challenge, see People v. Goodale, 78 P.3d 1103, 1106 (Colo.2003), or a due process void for vagueness challenge, see People v. Longoria, 862 P.2d 266, 269-70 (Colo.1993). As a result, there is no basis for the Majority or me to address any such challenges.

. I also find the Majority's reliance on State v. Runkles, 326 Md. 384, 605 AZd 111 (1992), misplaced. The Maryland court in Runkles explicitly stated its holding was limited to whether a statute prohibiting the sale of a minor covered "consent to the relinquishment of the custody of a child upon payment of money." Id. at 120. The court emphasized it was not determining the entire reach of the statute. Id. Maryland also has a separate statute that addresses human trafficking. Md.Code Ann., Crim. Law § 11-303(c) (West 2013). I thus disagree that Runkles is useful for interpreting Colorado's trafficking in children statute.