v. Maloy

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 23, 2019

2020COA71

No. 17CA0026, People v. Maloy — Constitutional Law —
Colorado Constitution — Equal Protection; Crimes —
Patronizing a Prostituted Child — Inducement of Child
Prostitution — Soliciting for Child Prostitution — Pandering of
a Child

A division of the court of appeals holds that, under the facts of

this case, charging the defendant with patronizing a prostituted

child violated his right to equal protection of the laws because doing

so subjected him to a longer sentence than he faced for other child

prostitution offenses proscribing the same or more culpable

conduct.
COLORADO COURT OF APPEALS 2020COA71

Court of Appeals No. 17CA0026
Jefferson County District Court No. 15CR701
Honorable Margie L. Enquist, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cravaughn Lacrae Maloy,

Defendant-Appellant.

JUDGMENT AND SENTENCE
AFFIRMED IN PART AND VACATED IN PART

Division V
Opinion by JUDGE J. JONES
Harris and Brown, JJ., concur

Announced April 23, 2020

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Cox, Deputy State Public
Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Cravaughn Lacrae Maloy, appeals the judgment of

conviction entered on jury verdicts finding him guilty of patronizing

a prostituted child, pimping of a child, keeping a place of child

prostitution, and inducement of child prostitution. He also appeals

the indeterminate sentence of four years to life in the custody of the

Department of Corrections (DOC), imposed for his patronizing

conviction.

¶2 We conclude that, under the facts of the case, charging Maloy

with patronizing a prostituted child violated his right to equal

protection of the laws. Accordingly, we vacate his conviction and

sentence on that count. We otherwise affirm the judgment.

I. Background

¶3 Two teenagers, M.C. (seventeen) and R.S. (about fifteen), ran

away from their group home. A little over a week later, they met

Maloy — who was nineteen years old at the time — at a bus stop in

Lakewood. They ran into him again the next day and walked with

him to some apartments, where M.C. and Maloy talked. Apparently

while there, M.C. started crying and Maloy told her “to shut up or

he was going to beat [her] up or something.”

1
¶4 Sometime later, either that same day or the next, Maloy told

M.C. to stand on the corner near the White Swan Motel and sell

herself.1 She testified that she did so because she “didn’t know how

to say no” and was scared of Maloy. After she stood on the corner

for a while, a customer picked her up and they went to his house

for sex; afterward, he dropped her back off at the motel and she

kept all the money he had paid her.

¶5 Maloy let M.C. stay with him that night. They went to an

apartment where M.C. met Alicia Sykes, Maloy’s girlfriend. Maloy

told M.C. she had to work to stay there: she had to sell herself and

make him money.

¶6 Over the next several days, M.C. continued to prostitute

herself with Sykes. She had sex with another customer in a room

at the White Swan Motel. To help attract more customers, Sykes

took pictures of M.C. and posted them to a backpage.com ad she

bought with a prepaid credit card. According to M.C., customers

would call the number on the ad — which went to Sykes’s phone —

1 R.S. wasn’t involved. Police arrested her later that day after a
family friend saw her at a Burger King and called 911. M.C. and
Maloy were with R.S. at the Burger King, but M.C. didn’t ask the
police for help.

2
and set up meetings with M.C. through Sykes. Sykes told M.C.

what to charge; M.C. would take the money she earned from

customers and give it to Sykes or Maloy. She said that sometimes

she was sleeping when a customer would call, and either Sykes or

Maloy would wake her up and tell her to take a shower to get ready.

M.C. also explained that on one occasion Maloy showed her the

money that she had made and told her “good job.”

¶7 Several days later, M.C. went to a Walmart, where a man

picked her up. They drove into the mountains together. Police

stopped the truck in Idaho Springs, discovered warrants for M.C.,

and arrested her.

¶8 Maloy, Sykes, and several of the customers were charged as a

result of the prostitution operation. Maloy’s case went to trial. He

argued that he didn’t induce M.C. to prostitute herself, didn’t take

money from her, and wasn’t involved in the prostitution — instead,

Sykes and M.C. had prostituted themselves of their own free will.

Maloy also tried to argue that he reasonably believed M.C. was at

least eighteen, but the district court denied his motion to allow an

affirmative defense based on that belief. The court later instructed

the jury on complicity. Ultimately, the jury found Maloy guilty of

3
patronizing a prostituted child, pimping of a child, keeping a place

of child prostitution, and inducement of child prostitution.2 The

court sentenced him to four years in DOC custody on all counts

except for count 4 — patronizing a prostituted child — for which it

sentenced him to four years to life pursuant to the Colorado Sex

Offender Lifetime Supervision Act of 1998 (SOLSA).

II. Discussion

¶9 We conclude that, under the circumstances of this case,

charging Maloy with patronizing a prostituted child violated his

right to equal protection of the laws under the Colorado

Constitution. We therefore vacate his conviction on that charge. As

a result, we don’t need to address all of his other contentions.

Those that we must address — because they pertain to all of

Maloy’s convictions — are that (1) the district court erred by

determining that section 18-7-407, C.R.S. 2019, prohibited him

from raising a reasonable mistake of age defense; (2) if, because of

section 18-7-407, mistake of age isn’t a defense to child prostitution

2Maloy was charged with, but acquitted of, soliciting for child
prostitution and pandering of a child (inducement). The People also
charged him with contributing to the delinquency of a minor but
agreed to dismiss that count on the morning of trial.

4
crimes, that statute violates his right to equal protection and

deprives him of due process; (3) the district court erred by rejecting

his tendered jury instructions on complicity; and (4) the prosecutor

committed misconduct by misrepresenting facts during closing

argument. We reject these contentions and affirm Maloy’s other

convictions.

A. Constitutionality of Patronizing a Prostituted Child

¶ 10 Maloy contends that section 18-7-406(1)(a), C.R.S. 2019, is

unconstitutional because (1) it is unconstitutionally vague and (2)

as applied to him, it violates his right to equal protection. We

address the second contention first. Because we agree with Maloy’s

equal protection challenge we don’t address his vagueness

challenge.

1. Standard of Review

¶ 11 We review constitutional challenges to a statute de novo.

People v. Graves, 2016 CO 15, ¶ 9; People v. Slaughter, 2019 COA

27, ¶ 15. Because Maloy didn’t preserve his equal protection

argument, we won’t reverse unless any error was plain. Hagos v.

People, 2012 CO 63, ¶ 14. Plain error is error that is both “obvious

and substantial.” Id. The latter requirement means that the error

5
must have so undermined the fundamental fairness of the trial as

to cast serious doubt on the reliability of the judgment of

conviction. Id.

2. As-Applied Equal Protection Challenge

¶ 12 Maloy argues that, as applied to his conduct, section 18-7-

406(1)(a) — criminalizing patronizing a prostituted child — violates

his right to equal protection of the laws because it prohibits

essentially the same conduct, or less culpable conduct, as other

child prostitution offenses (specifically, soliciting for child

prostitution, pandering of a child, and inducement of child

prostitution) while carrying a much higher sentence. We agree as to

pandering and inducement.

a. Applicable Law

¶ 13 “Colorado’s guarantee of equal protection is violated where two

criminal statutes proscribe identical conduct, yet one punishes that

conduct more harshly.” Dean v. People, 2016 CO 14, ¶ 14.

Similarly, “[s]tatutes prescribing different sanctions for what

ostensibly might be different acts, but offering no rational standard

for distinguishing such different acts for purposes of disparate

punishment, also contravene the equal protections guaranties of

6
Colorado’s constitution.” People v. Wilhelm, 676 P.2d 702, 704

(Colo. 1984). And “Colorado’s guarantee of equal protection is

violated where two statutes proscribe similar conduct, yet the

scheme imposes the harsher penalty for acting with intent to cause,

or for actually causing, a less grievous result.” Dean, ¶ 15; see,

e.g., People v. Montoya, 196 Colo. 111, 114-15, 582 P.2d 673, 675-

76 (1978).

¶ 14 But “criminal legislation is not invalidated simply because a

particular act may violate more than one statutory provision[.]”

People v. Onesimo Romero, 746 P.2d 534, 537 (Colo. 1987). Rather,

in considering an as-applied equal protection challenge, “we

consider whether — under the specific circumstances under which

[the defendant] acted — the relevant statutes, or specific

subsections of the statutes, punish identical conduct, and whether

a reasonable distinction can be drawn between the conduct

punished by the two statutes.” People v. Trujillo, 2015 COA 22,

¶ 21 (citing Onesimo Romero, 746 P.2d at 538-39).3 A reasonable

3 Citing Campbell v. People, 73 P.3d 11 (Colo. 2003), the People
argue that we are limited to comparing the statutory elements of the
relevant offenses in resolving Maloy’s equal protection challenge.
But we agree with Maloy that an as-applied challenge, in contrast to

7
distinction is one that is “real in fact and reasonably related to the

general purposes of criminal legislation.” People v. Marcy, 628 P.2d

69, 74 (Colo. 1981).

b. Analysis

¶ 15 The People challenge the premise of Maloy’s contention,

suggesting that since all of the other offenses to which he points

are, like patronizing, at least class 3 felonies, they are subject to

equal or higher sentencing ranges, meaning there is no disparate

treatment. The People miss the mark.

¶ 16 Soliciting and inducement are both class 3 felonies and carry

sentences of four to twelve years in DOC custody. §§ 18-1.3-

401(1)(a)(V)(A), 18-7-402(2), 18-7-405.5(2), C.R.S. 2019. Depending

on the subsection, pandering is either a class 3 felony or a class 2

felony (with a presumptive range of eight to twenty-four years in

DOC custody). §§ 18-1.3-401(1)(a)(V)(A), 18-7-403(2), C.R.S. 2019.

Patronizing is a class 3 felony as well, see § 18-7-406(2), but is

included among SOLSA-punishable crimes, and therefore carries a

a facial challenge, permits consideration of the facts giving rise to
the charge. See People v. Lee, 2019 COA 130, ¶ 16. And this isn’t
one of those cases that requires a more fully developed record to
assess the as-applied challenge.

8
sentence of four years to life. §§ 18-1.3-1003(5)(a)(X), -1004(1)(a),

C.R.S. 2019.4 Under the SOLSA sentencing scheme, the defendant

is eligible for release at the bottom of the sentenced range (in

Maloy’s case, four years), but may, at the parole board’s discretion,

remain in prison indefinitely.

¶ 17 When analyzing an equal protection claim, Colorado courts

“compare[] the relative severity of sentences by reference to the

maximum possible period of incarceration, not the timing of parole

eligibility.” Dean, ¶ 10. Under this approach, a sentence that could

potentially leave an offender in prison for life is necessarily harsher

than a sentence with a maximum twelve-year (or twenty-four-year)

end date. We therefore reject the People’s argument.

4 Patronizing a child is the only child prostitution offense subject to
sentencing under SOLSA. We presume that the General Assembly
made that choice because it believed patronizing a child prostitute
by “[e]ngag[ing] in an act which is prostitution . . . by a child” is the
only child prostitution offense that requires proof of sexual conduct
by the child victim. § 18-7-406(1)(a), C.R.S. 2019. But, as we
discuss below, it is not clear that proof of such conduct is required
to prove prostitution by a child. See § 18-7-401(6), C.R.S. 2019.
And such proof clearly isn’t required to prove patronizing a child
prostitute by “[e]ngag[ing] in an act which is prostitution of a child,”
§ 18-7-406(1)(a) (emphasis added); see § 18-7-401(7), which is what
creates the equal protection problem in this case. Perhaps the
General Assembly should revisit that issue, as well as the language
of the child prostitution offenses generally.

9
¶ 18 We also reject the People’s argument that patronizing is

distinguishable from the other offenses in that it is “the only offense

that criminalizes sexual contact with a prostituted child.” True, a

person may violate the statute by having sexual contact with a

prostituted child. But such contact isn’t required to prove a

violation. In the case of prostitution by a child, the child need only

offer or agree to perform certain sexual acts (in exchange for money

or other thing of value). See § 18-7-401(6). In the case of

prostitution of a child, the defendant need only induce the child (by

coercion, threat, or intimidation) to perform or offer or agree to

perform certain sexual acts with a third party, not the defendant.

See § 18-7-401(7).

¶ 19 We turn now to the application of the patronizing statute to

Maloy’s conduct.

¶ 20 Maloy was charged with and convicted of patronizing a

prostituted child under section 18-7-406(1)(a), which criminalizes

“[e]ngag[ing] in an act which is prostitution of a child or by a child,

as defined in section 18-7-401(6) or (7).” During her opening

statement, the prosecutor explained that Maloy scared M.C.; that

he threatened to assault her if she didn’t do as she was told; and

10
that he told her to prostitute herself to earn money (and that she

did so because of Maloy’s threats). During the evidentiary phase of

the trial, the prosecution introduced evidence to that effect: Maloy

threatened and scared M.C. and told her to prostitute herself —

which she did — and Maloy received a cut of the money.

¶ 21 Based on this evidence and the prosecutor’s explanation of the

People’s theory, Maloy’s alleged conduct fell under the “prostitution

of a child” option — specifically, that Maloy induced M.C. to perform

certain sexual acts (with third persons, not Maloy), or induced her

to allow others to perform such acts, by coercion or threat or

intimidation or in exchange for money or other thing of value. See

§ 18-7-401(7) (defining “[p]rostitution of a child”).

¶ 22 As noted, Maloy argues that three other statutes — soliciting

for child prostitution, pandering of a child, and inducement of child

prostitution — proscribe essentially the same conduct, but carry

more lenient sentences. We disagree as to soliciting, but agree that,

as applied to Maloy’s conduct, Maloy’s conviction for patronizing

violates equal protection because pandering and inducement

penalize the same or more culpable conduct with lighter sentences.

11
i. Soliciting

¶ 23 Pursuant to section 18-7-402(1), a person commits soliciting

for child prostitution if he

(a) Solicits another for the purpose of
prostitution of a child or by a child;
(b) Arranges or offers to arrange a meeting of
persons for the purpose of prostitution of
a child or by a child; or
(c) Directs another to a place knowing such
direction is for the purpose of prostitution
of a child or by a child.

¶ 24 This section does not proscribe the same conduct as

patronizing a prostituted child (prostitution of a child), even as

applied to Maloy. It prohibits certain actions — soliciting, arranging

or offering to arrange a meeting, and directing someone to a place

— for the purpose of prostitution of or by a child. Under this

section, the defendant’s conduct is criminal regardless of what the

child does, and it doesn’t require that the defendant interact with a

child at all. In contrast, as applied to Maloy, patronizing requires

that the child actually perform, offer, or agree to perform certain

sexual acts. And it requires that the defendant induce the child to

do so by coercion, threat, or intimidation, or in exchange for money

12
or other thing of value. So Maloy’s equal protection claim fails with

respect to soliciting.

ii. Pandering

¶ 25 A person commits pandering of a child (a class 2 felony) if the

person, for money or other thing of value, “[i]nduc[es] a child by

menacing or criminal intimidation to commit prostitution[.]” § 18-

7-403(1)(a). Pandering is a class 3 felony if, “for money or other

thing of value,” a person “[k]nowingly arrang[es] or offer[s] to

arrange a situation in which a child may practice prostitution.”

§ 18-7-403(1)(b).

¶ 26 Pandering under subsection (1)(b) prohibits substantially

different conduct than that criminalized as patronizing. It requires

arranging or offering to arrange a situation in which a child may

practice prostitution; patronizing doesn’t criminalize that behavior.

And like soliciting, pandering under subsection (1)(b) doesn’t

require that the child do anything. The crime is arranging the

situation, regardless of whether a child ultimately engages in

prostitution or is even present in the scenario.

¶ 27 But subsection (1)(a) is a different story. True, there are two

apparent, facial differences between that crime and patronizing.

13
One, pandering requires that the defendant act in exchange for

“money or other thing of value,” while patronizing may involve, but

doesn’t necessarily require, such an exchange (coercion, a threat, or

intimidation suffices). Two, pandering requires that the defendant’s

actions amount to menacing or criminal intimidation, while, again,

patronizing may involve, but doesn’t require, such conduct (mere

coercion, threat, or intimidation, or an exchange of money or other

thing of value suffices). But in the context of this equal protection

claim, these differences are meaningless. This is so for two reasons.

¶ 28 First, requiring proof of more elements (both an exchange of

money or other thing of value and menacing or criminal

intimidation) to obtain a conviction for pandering under subsection

(1)(a) — which is not subject to indeterminate sentencing — means

that the prosecution must prove more than it must to obtain a

conviction under the statute bearing the harsher penalty.

Punishing a defendant more severely for a crime that may require

less proof “bears no rational relationship to a legitimate legislative

purpose or government objective” and seems unreasonable and

arbitrary. Dean, ¶ 12.

14
¶ 29 Second, under many applications of the patronizing statute,

and certainly under the application in this case, patronizing does

not have “greater social impact and more grave consequences.”

Montoya, 196 Colo. at 113, 582 P.2d at 675. Indeed, proving

pandering under subsection (1)(a), under which Maloy was charged

(but acquitted), requires a showing that the defendant induced a

child to commit prostitution “by menacing or criminal intimidation”

— more blameworthy conduct than that proscribed by the

patronizing statute. Smith v. People, 852 P.2d 420, 421-22 (Colo.

1993); People v. Suazo, 867 P.2d 161, 164-66 (Colo. App. 1993).

iii. Inducement

¶ 30 A person commits inducement of child prostitution if he, “by

word or action, other than [by menacing or criminal intimidation],

induces a child to engage in an act which is prostitution by a

child[.]” § 18-7-405.5.

¶ 31 Breaking this down, a conviction under this statute requires

that a defendant, (1) by some word or action, (2) induce a child to

perform or offer or agree to perform “[certain sexual acts] [3] with

15
any person not the child’s spouse [4] in exchange for money or

other thing of value[.]” §§ 18-7-401(6), -405.5.5

¶ 32 As noted, patronizing a prostituted child prohibits (among

other things) a person from engaging in inducing a child to perform

or offer or agree to perform (or allow another to perform or offer or

agree to perform) the same sexual acts by coercion, threat, or

intimidation, or in exchange for money or other thing of value. See

§§ 18-7-401(7), -406(1)(a).

¶ 33 The critical facial difference between inducement and

patronizing in this context is that inducement requires proof that

“money or other thing of value” was exchanged; patronizing

criminalizes that conduct, but it doesn’t necessarily require it:

again, coercion or a threat or intimidation suffices.

¶ 34 But again, this potential distinction doesn’t convince us that

the offenses are different in a way that would defeat Maloy’s as-

applied equal protection argument. As noted, in Maloy’s case,

5 This is so because prostitution by a child requires an exchange of
“money or other thing of value,” § 18-7-401(6), and inducement
specifically proscribes inducing a child to engage in prostitution by
a child. Prostitution of a child can, but doesn’t necessarily, require
that money or a thing of value be exchanged. See § 18-7-401(7).

16
money was exchanged. Thus, his conduct violated both statutes in

precisely the same way.

c. Disposition

¶ 35 We conclude that the patronizing statute violates equal

protection as applied to Maloy and that this violation was obvious

and substantial. It resulted in Maloy’s potential lifetime

imprisonment, rather than a determinate sentence of four to twelve

years. We therefore vacate Maloy’s conviction for patronizing. See,

e.g., People v. Mumaugh, 644 P.2d 299, 301 (Colo. 1982) (vacating

the defendant’s conviction after concluding it violated his right to

equal protection); Suazo, 867 P.2d at 168 (same); cf. People v. Lee,

2019 COA 130 (affirming dismissal of counts that violated equal

protection).

B. Mistake of Age Defense

¶ 36 Maloy contends that the district court erred by refusing to

allow him to assert a reasonable mistake of age defense and

introduce evidence that he thought M.C. was at least eighteen.

Specifically, he argues that this defense is available under a correct

interpretation of sections 18-1-503.5(1), C.R.S. 2019, and 18-7-407,

and that reading the statutes to preclude that defense in this case

17
violates his rights to equal protection and due process.6 We aren’t

persuaded.

1. Standard of Review

¶ 37 We review questions of statutory interpretation de novo.

McCoy v. People, 2019 CO 44, ¶ 37. We also review constitutional

challenges to a statute de novo. People v. Perez-Hernandez, 2013

COA 160, ¶ 10.

2. Sections 18-1-503.5(1) and 18-7-407 Don’t Allow a Mistake of
Age Defense to The Remaining Charges

¶ 38 Section 18-1-503.5(1) provides in pertinent part that “[i]f the

criminality of conduct depends on a child being younger than

eighteen years of age and the child was in fact at least fifteen years

of age, it shall be an affirmative defense that the defendant

reasonably believed the child to be eighteen years of age or older.”

In contrast, section 18-7-407 provides that, “[i]n any criminal

prosecution under sections 18-7-402 to 18-7-407, it shall be no

defense that the defendant did not know the child’s age or that he

reasonably believed the child to be eighteen years of age or older.”

6 He also argues that there was sufficient evidence to support his
reasonable mistake of age defense; but because we conclude that
this defense isn’t available, we don’t address that argument.

18
(Emphasis added.) So with respect to Maloy’s convictions for

pimping a child, keeping a place of prostitution, and inducement of

child prostitution, all of which arise under sections 18-7-402 to

-407, these two provisions conflict. See People v. Houser, 2013

COA 11, ¶ 19.

¶ 39 When two provisions irreconcilably conflict, the specific

provision prevails over the general provision “unless the general

statute was enacted more recently than the specific statute, and the

legislature manifestly intends that the later-enacted general statute

prevail over the earlier-enacted specific statute.” Jenkins v. Pan.

Canal Ry. Co., 208 P.3d 238, 241-42 (Colo. 2009). Section 18-7-

407 is more specific because it prohibits the mistake of age defense

for certain crimes, while section 18-1-503.5(1) allows the defense

generally. But section 18-1-503.5(1) was enacted more recently

than section 18-7-407.7 So, Maloy argues, section 18-1-503.5(1)

should apply because the General Assembly demonstrated a

manifest intent that the general provision prevail. We disagree.

7 Section 18-1-503.5 was added in 2001. Ch. 243, sec. 6, 2001
Colo. Sess. Laws 859. Section 18-7-407 has “remained unchanged
since reenactment in 1979[.]” People v. Houser, 2013 COA 11, ¶ 26.

19
¶ 40 In Houser, a division of this court addressed and rejected the

same argument. Noting that the General Assembly’s intent is only

“manifest” when it is “clear and unmistakable,” the division

concluded that section 18-7-407 prevails and therefore precluded

the defendant from raising a reasonable mistake of age defense to

the charge of patronizing a prostituted child. Houser, ¶¶ 20-26. To

support this conclusion, the division discussed the mixed evidence

from the legislative record, including the following:

 The first sentence of section 18-1-503.5 was originally in

the part of the criminal code relating to “unlawful sexual

behavior.” The 2001 bill moved it to the article

containing “provisions applicable to offenses generally.”

Id. at ¶ 21.

 The sponsor of the bill in the House said that the bill was

meant to “clarif[y]” the law and “doesn’t change very

much.” Id. at ¶ 25.

 Another House sponsor explained that the provision was

only meant to apply to offenses that are criminal solely

because of the victim’s age — for example, providing

20
tobacco to minors. (Providing tobacco to an adult isn’t a

crime.) Id. at ¶ 24.

 There was no discussion of how the bill would affect

section 18-7-407. Id. at ¶ 26.

¶ 41 We agree with Houser that while there is some evidence that

the General Assembly intended this provision to apply to all crimes,

the mixed legislative history doesn’t evince a clear, unmistakable

intent for the later, general provision to prevail over the earlier,

more specific one.

¶ 42 Maloy cites Gorman v. People, 19 P.3d 662 (Colo. 2000), a

supreme court case from 2000 that led to section 18-1-503.5(1)’s

relocation and amendment, in support of his argument that the

affirmative defense is available in child prostitution offenses. In

Gorman, the court held that the affirmative defense applies to the

offense of contributing to the delinquency of a minor because the

criminality of a defendant’s conduct depends on the victim being a

minor. Id. at 667. But we don’t read Gorman to hold that

reasonable mistake of age is an affirmative defense in child

prostitution offenses. Rather, Gorman suggests (like one sponsor of

the relocation and amendment bill explained) that the defense is

21
applicable where an offense’s criminality is based solely on the

victim’s age. (There is no analogous crime of contributing to the

delinquency of an adult.) And in any event, Gorman didn’t involve a

child prostitution offense to which the bar of section 18-7-407

applied. Thus, Gorman is distinguishable.

¶ 43 We therefore conclude that the district court didn’t err by

ruling that the affirmative defense of reasonable mistake of age

wasn’t available to Maloy.

3. Section 18-7-407 Doesn’t Violate Equal Protection or Due
Process

¶ 44 In the alternative, Maloy contends that if mistake of age isn’t

an affirmative defense to patronizing a prostituted child, section 18-

7-407 violates his rights to equal protection and due process.

a. Equal Protection

¶ 45 Maloy argues that disallowing a mistake of age defense for

child prostitution crimes but allowing it for other crimes involving

minors as victims violates equal protection. More specifically, he

argues that even if there is a rational basis for imposing harsher

penalties when the victim is a minor than when the victim is an

22
adult,8 “that justification disappears when the victim is close to 18,

and the defendant reasonably believes that she is at least 18.” We

don’t agree.

¶ 46 The United States and Colorado Constitutions guarantee that

no person shall be denied equal protection of the law. U.S. Const.

amend. XIV; Colo. Const. art. II, § 25. Equal protection “assures

that those who are similarly situated will be afforded like

treatment.” People v. Griego, 2018 CO 5, ¶ 35. The General

Assembly may impose harsher penalties “for acts that it perceives to

have graver social consequences,” but the statutory classification of

crimes must be “based on differences that are real in fact and

reasonably related” to that purpose. Id. at ¶ 36 (quoting People v.

Jefferson, 748 P.2d 1223, 1226 (Colo. 1988)); see Suazo, 867 P.2d

at 164. When, as in this case, the classification doesn’t implicate a

traditionally suspect class or fundamental right, we apply rational

basis review: the party challenging the statute must show that “the

8 Keeping a place of child prostitution, for instance, is a class 3
felony with a sentencing range of four to twelve years in DOC
custody. See §§ 18-1.3-401(1)(a)(V)(A), 18-7-404, C.R.S. 2019. But
keeping a place of prostitution is a class 2 misdemeanor with a
maximum sentence of twelve months’ imprisonment. See §§ 18-
1.3-501(1)(a), 18-7-204, C.R.S. 2019.

23
statute’s classification bears no rational relationship to a legitimate

legislative purpose or government objective, or that the

classification is otherwise unreasonable, arbitrary, or capricious.”

Dean, ¶ 12.9

¶ 47 We start by recognizing that there is a rational basis for

drawing a line between adults and minors when it comes to

prostitution-related offenses. The Supreme Court has held that “[i]t

is evident beyond the need for elaboration that a State’s interest in

‘safeguarding the physical and psychological well-being of a minor’

is ‘compelling,’” and that the “prevention of sexual exploitation and

abuse of children constitutes a government objective of surpassing

importance.” New York v. Ferber, 458 U.S. 747, 756-57 (1982)

(quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607

(1982)). Imposing harsher penalties for prostitution-related

9 Maloy’s imprisonment doesn’t implicate a fundamental right. See
People v. Young, 859 P.2d 814, 818 (Colo. 1993) (“An adult offender
has no fundamental liberty interest in freedom from
incarceration.”); People v. Garberding, 787 P.2d 154, 156 (Colo.
1990) (“[F]elons are not entitled to a particular, or lenient,
sentence.”). Nor has Maloy argued that this classification
implicates a traditionally suspect class.

24
offenses involving minors is directly related to the goal of protecting

minors.

¶ 48 With this in mind, we conclude that there is a rational basis

for precluding defendants from avoiding conviction on such offenses

by asserting that they didn’t know the victim was under eighteen

while not precluding such a defense to other offenses involving

minors as victims. As noted, child prostitution presents unique

opportunities for continued sexual exploitation and abuse. And as

noted by the People, in enacting section 18-7-407, the General

Assembly recognized that child prostitutes may look and act like

adults, and wanted that not to be a defense. See Hearings on H.B.

1574 before the H. Health, Env’t, Welfare & Instits. Comm., 52d

Gen. Assemb., 1st Sess. (Mar. 21 & Apr. 18, 1979). In other words,

unlike with other offenses involving minors as victims, child

prostitution carries with it an enhanced possibility that the minor

will not appear to be a minor, and so to allow mistake of age to be a

defense to such offenses risks losing protection for a substantial

portion of the protected class of victims.

¶ 49 We therefore reject Maloy’s equal protection argument.

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b. Due Process

¶ 50 Maloy also argues that applying section 18-7-407 rather than

the more general section 18-1-503.5(1) violates his substantive due

process rights because it creates a strict liability offense. Again, we

don’t agree.

¶ 51 At the outset, we note that barring a defendant from raising

the affirmative defense of reasonable mistake of age does not

transform any of the child prostitution offenses into strict liability

offenses. A strict liability offense contains no culpable mental state

requirement — that is, a defendant’s conduct is criminalized

regardless of whether the defendant acted with any particular mens

rea. See People v. Ellison, 14 P.3d 1034, 1038 (Colo. 2000). Maloy

is correct that strict liability crimes tend to be public welfare

offenses — like speeding, see People v. Caddy, 189 Colo. 353, 355,

540 P.2d 1089, 1091 (1975), or public indecency, see People v.

Hoskay, 87 P.3d 194, 198 (Colo. App. 2003) — and often carry

lower penalties than other crimes. But he’s not correct that the

child prostitution statutes are strict liability crimes merely because

defendants can’t present an affirmative defense to the age element.

Inability to defend against one element of a crime through an

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affirmative defense doesn’t mean the entire offense lacks any mens

rea.10

¶ 52 And we aren’t persuaded by Maloy’s apparent argument that

even making the age element “strict liability” violates his right to

due process. As with equal protection, we review substantive due

process claims that don’t implicate a fundamental right under the

rational basis test: the state must “demonstrate that the legislation

bears some reasonable relationship to a legitimate governmental

interest.” People v. Young, 859 P.2d 814, 818 (Colo. 1993). As

discussed, preventing defendants from using the mistake of age

affirmative defense bears a reasonable relationship to the

government’s interest of protecting minors from psychological and

sexual trauma associated with child prostitution.

C. Jury Instructions on Complicity

¶ 53 Next, Maloy contends that the district court erred by refusing

to give the jury his tendered instructions relating to complicity. We

disagree.

10The People correctly point out that the relevant offenses include,
explicitly or implicitly, the mental state of “knowingly” or with intent
as to the conduct proscribed. See §§ 18-7-404(1)(a), -405,
-405.5, -406(1), C.R.S. 2019.

27
1. Applicable Law and Standard of Review

¶ 54 A district court “has substantial discretion in formulating the

jury instructions, so long as they are correct statements of the law

and fairly and adequately cover the issues presented.” People v.

Nerud, 2015 COA 27, ¶ 35 (quoting People v. Gallegos, 226 P.3d

1112, 1115 (Colo. App. 2009)). We review jury instructions de novo

to determine whether a particular instruction accurately informed

the jury of the governing law. Riley v. People, 266 P.3d 1098, 1092

(Colo. 2011). If it did, we review for an abuse of discretion a district

court’s decision whether to give the particular instruction. See

People v. Stellabotte, 2016 COA 106, ¶ 18, aff’d on other grounds,

2018 CO 66. A court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or based on a

misapplication of the law. Id.

2. Additional Facts

¶ 55 The district court instructed the jurors on complicity, telling

them that “it is a legal theory by which one person may be found

guilty of a criminal offense that was committed in whole or in part

by another person,” and providing them with a list of elements the

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prosecution was required to prove to show that Maloy was guilty as

a complicitor:

To be found guilty as a complicitor, the
prosecution must prove each of the following
circumstances beyond a reasonable doubt:

l. A crime must have been committed.

2. Another person must have committed all or
part of the crime.

3. The defendant must have had knowledge
that the other person intended to commit all or
part of the crime.

4. The defendant must have had the intent to
promote or facilitate the commission of the
crime.

5. The defendant must have aided, abetted,
advised, or encouraged the other person in
planning or committing the crime.

Your decision need not be unanimous as to
whether the defendant acted as principal or
complicitor with respect to any particular
crime charged, as long as each of you is
satisfied, beyond a reasonable doubt, that the
defendant acted as either principal or
complicitor with respect to that particular
charge.

¶ 56 Maloy also tendered three instructions related to complicity:

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 “Guilt by association and mere presence at the scene of a

crime do not amount to proof, by themselves, that the

accused himself was a part of that crime.”

 “Mere knowledge of prostitution is not a crime.”

 “An individual does not have a legal duty to stop the

commission of prostitution.”

The district court rejected each instruction, ruling that the other

instructions adequately covered these concepts.

3. Analysis

¶ 57 Maloy doesn’t challenge the accuracy of the district court’s

complicity instruction; rather, he contends only that the court

should have given his additional instructions because they were

legally accurate, appropriate given the evidence, and not

encompassed in the court’s other instructions.

¶ 58 But a court has no obligation to give the jury specific

instructions, even if they are legally accurate and appropriate given

the evidence. Cf. People v. Paglione, 2014 COA 54, ¶ 48 (court

didn’t abuse its discretion by removing “If you entertain a

reasonable doubt regarding this issue you must return a verdict of

Not Guilty” from the defendant’s theory of the case instruction; that

30
statement was already encompassed in a separate burden of proof

instruction). And in this case, the district court correctly

determined that the other instructions already covered the concepts

in Maloy’s tendered instructions. Each of Maloy’s tendered

instructions conveyed concepts that are at least implied, if not

explicit, in the court’s complicity instruction. Maloy could not be

found guilty based on mere knowledge and presence if, as the

court’s complicity instruction required, the jury found that he

intended to promote or facilitate the commission of the crime and

he aided, abetted, advised, or encouraged the other person in

planning or committing the crime.

D. Prosecutorial Misconduct

¶ 59 Last, Maloy contends that the prosecutor committed

misconduct by (1) referring to him as the “protection,” the “muscle,”

and the “enforcer” despite a lack of evidence that he fit those

descriptions; (2) referencing M.C.’s trauma; and (3) saying “there’s

no other evidence that [Maloy’s] been living anywhere [other than

with Sykes].” We aren’t persuaded.

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1. Standard of Review and Applicable Law

¶ 60 We use a two-step analysis to review claims of prosecutorial

misconduct: we determine whether the prosecutor’s conduct was

improper based on the totality of circumstances, and, if so, we

determine whether reversal is warranted under the appropriate

standard of review. Wend v. People, 235 P.3d 1089, 1096-97 (Colo.

2010). Because Maloy’s counsel didn’t object at trial to any of the

prosecutor’s statements, we will reverse only if any error was plain.

See Hagos, ¶ 14; Domingo-Gomez v. People, 125 P.3d 1043, 1053

(Colo. 2005).

¶ 61 “[A] prosecutor, while free to strike hard blows, is not at liberty

to strike foul ones.” Domingo-Gomez, 125 P.3d at 1048 (quoting

Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)). A prosecutor

should not “intentionally misstate the evidence or mislead the jury

as to the inferences it may draw.” Id. at 1049 (quoting ABA

Standards for Criminal Justice: Prosecution Function and Defense

Function § 3-5.8 (3d ed. 1993)). But a prosecutor “has wide

latitude to make arguments based on facts in evidence and

reasonable inferences drawn from those facts.” People v. Strock,

252 P.3d 1148, 1153 (Colo. App. 2010); see Domingo-Gomez, 125

32
P.3d at 1048. Accordingly, prosecutorial misconduct does not

amount to plain error unless it is “flagrant or glaringly or

tremendously improper[.]” Strock, 252 P.3d at 1152 (quoting People

v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004)).

2. Analysis

¶ 62 We conclude that none of the prosecutor’s statements to which

Maloy points constituted misconduct.

¶ 63 First, the prosecutor’s comments during closing argument that

Maloy was the “protection,” the “muscle,” and the “enforcer”

reflected the prosecution’s theory of how Maloy was involved in

M.C.’s prostitution and were reasonable inferences one could draw

from the evidence. For example, the jury heard testimony that M.C.

thought Maloy was “scary” and that he threatened her and took

some of the money she had collected.

¶ 64 Second, we aren’t persuaded that the prosecutor’s reference to

M.C.’s trauma was misconduct. During rebuttal, the prosecutor

argued,

Members of the jury, I’m going to ask you, go
back, take time to go through all of the
evidence, take time to figure out, is there just
one way that a child is supposed to respond to
sexual trauma? Is she absolutely supposed to

33
cry every time she talks about it, or perhaps is
there more than one way to deal with that
trauma. And perhaps — did you observe the
way that [M.C.] is still having to deal with that
trauma? And it was at the hands of the
defendant.

¶ 65 While there was no direct evidence that M.C. suffered trauma,

reasonable jurors could have inferred that M.C. would have

experienced trauma based on the evidence presented. And in

context, the prosecutor wasn’t pointing this out to ask the jurors to

render a verdict based on their sympathy for M.C.,11 but rather to

explain M.C.’s demeanor and to counter the defense attorney’s

attacks on her demeanor and credibility.

¶ 66 Third, the prosecutor’s statement that “there’s no other

evidence that [Maloy’s] been living anywhere else” wasn’t improper.

Maloy argues that the prosecutor misstated the evidence because a

witness testified that Maloy split his time between different

locations. But taken in context, the statement wasn’t misleading

11Such arguments are improper. A prosecutor may not encourage
the jury to “depart from its duty to decide the case on the evidence”
by appealing to sympathy for the victim. People v. Leyba, 2019
COA 144, ¶ 58 (quoting People v. Dunlap, 975 P.2d 723, 759 (Colo.
1999)).

34
and was a reasonable inference to draw from the evidence. The

prosecutor explained that,

[w]hen they get back to the apartment,
Apartment 416, [Maloy] walks in freely. This is
his apartment too. He did not have to be on
the lease for it to be his apartment. He’s
coming and going as he pleases. He spends
the night. He wakes up in the morning.
[Sykes] says he’s been living there. There’s no
other evidence that he’s been living anywhere
else.

And so now he’s recruited her and brought her
back to this apartment, and [Sykes] is going to
train and teach her . . . .

The prosecutor’s apparent purpose was to explain to the jury that

Maloy spent a lot of time at Sykes’s apartment and treated it like

his home — that he was there a lot, and therefore aware of and

involved in the prostitution. Although a witness testified that Maloy

also spent nights in other places during June of 2014, it wasn’t

unreasonable for the prosecutor to draw the inference from the rest

of the evidence that Maloy didn’t “live” anywhere else. But even if

that statement were somehow misleading, it wasn’t so “flagrant or

glaringly or tremendously improper” that we must reverse Maloy’s

conviction.

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III. Conclusion

¶ 67 We vacate Maloy’s conviction and sentence on count 4

(patronizing a prostituted child). The judgment is otherwise

affirmed.

JUDGE HARRIS and JUDGE BROWN concur.

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