People v. Houser, No. 09CA2147.

• Docket Nº: No. 09CA2147.
• Citation: 2013 COA 11, 337 P.3d 1238
• Case Date: January 31, 2013
• Court: Court of Appeals of Colorado

337 P.3d 1238
2013 COA 11

The PEOPLE of the State of Colorado, Plaintiff–Appellee
v.
Timothy Charles HOUSER, Defendant–Appellant.

No. 09CA2147.

Colorado Court of Appeals, Div. IV.

Jan. 31, 2013.
Rehearing Denied April 18, 2013.

337 P.3d 1242

John W. Suthers, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

337 P.3d 1243

Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion

Opinion by Judge WEBB.

¶ 1 Defendant, Timothy Charles Houser, appeals the judgment of conviction entered on a jury verdict finding him guilty of patronizing a prostituted child. We affirm and remand for correction of the mittimus.

I. Background

¶ 2 A.J. was arrested in Denver and charged with prostitution, soliciting for the purpose of prostitution, and possession of a controlled substance. She was then sixteen years old. A.J. told police that the night before her arrest, she had gone to defendant's home in Douglas County where he paid her $240 to engage in sexual acts with him. Because of her cooperation, Denver authorities allowed A.J. to plead guilty to a prostitution charge, a class three misdemeanor, and dropped the possession charge, a class three felony. She received a deferred adjudication.

¶ 3 Based on A.J.'s statements, defendant was charged in Douglas County with patronizing a prostituted child in violation of section 18–7–406, C.R.S.2012, and another offense that was dismissed before trial. At trial, A.J. testified that she had come to Denver from Washington to earn money through prostitution. Upon arrival, she posted a notice on Craigslist identifying herself as a twenty-year-old “playmate.”

¶ 4 The prosecution entered into evidence three emails from defendant, the validity of which he did not dispute.

• The first email responded to A.J.'s posting by requesting “references” and wanting to “schedule for tomorrow,” if the references “look good.”

• The second email, sent in response to a potential client trying to find A.J., said that defendant was “just a tiny bit unsure [a]bout [A.J.'s] age”.

• The third email, sent the day after A.J. had been to defendant's home, said that she was “the real deal,” made an “[o]utcall all the way to Parker,” performed “great utf, [was] very enthusiastic and FTF.” Prosecution witnesses testified that “utf” and “FTF” were abbreviations frequently used on the Internet to describe the sexual acts that A.J. testified she had performed for money.

Defendant did not testify.

II. Affirmative Defense

¶ 5 Defendant first contends the trial court erred by precluding him from raising the defense that he reasonably believed A.J. was at least eighteen years old. We reject this contention.

¶ 6 After defendant gave notice before trial of his intent to assert this defense, the trial court ruled that section 18–7–407, C.R.S.2012,¹ prevented defendant from offering a reasonable belief defense, notwithstanding broad language in section 18–1–503.5(1), C.R.S.2012,² permitting such a defense. Following this ruling, defendant's theory at trial was that, although he had paid A.J., he did not engage in sexual acts with her because she could not verify her age.

A. Sufficiency of Evidence to Support the Affirmative Defense

¶ 7 As a preliminary matter, we reject the Attorney General's assertions that we may affirm without construing the statutes, see People v. Eppens, 979 P.2d 14, 22 (Colo.1999) (“[A] party may defend the judgment of the trial court on any ground supported by the record.”), on the grounds that no credible

337 P.3d 1244

evidence supported such a defense, and defendant could not assert the defense because he denied at trial having engaged in sexual acts with A.J.

1. Standard of Review

¶ 8 “[T]o present an affirmative defense for jury consideration, the defendant must present some credible evidence on the issue involving the claimed defense. Whether the defendant meets this burden of going forward is a question of law for the trial court, and we therefore review the sufficiency of the defendant's evidence de novo.” People v. Garcia, 113 P.3d 775, 783–84 (Colo.2005) (citations omitted). This inquiry considers the evidence in the light most favorable to the defendant. People v. Green, 2012 COA 68, ¶ 14, 296 P.3d 260.

2. Law

¶ 9 Evidence supporting an affirmative defense “may come from any source, even from the prosecution.” People v. Whatley, 10 P.3d 668, 670 (Colo.App.2000). The burden to produce sufficient evidence is “exceedingly low,” making preclusion of an affirmative defense appropriate only when there is “simply no evidence ... in th[e] record.” People v. Platt, 170 P.3d 802, 806 (Colo.App.2007), aff'd, 201 P.3d 545 (Colo.2009) ; see People v. DeWitt, 275 P.3d 728, 733 (Colo.App.2011) (applying the “scintilla of evidence standard” to the defendant's burden of proof).

3. Application

¶ 10 Here, the record contains sufficient evidence to support a reasonable belief defense, if it is statutorily available. A.J. testified at trial that she presented herself to clients as a twenty-year-old, which was confirmed by evidence of her online postings. These postings included photographs of A.J., which, if viewed in the light most favorable to defendant, could portray a person at least eighteen years of age.

¶ 11 Further, defendant's position at trial—that he never engaged in sexual acts with A.J.—did not preclude the affirmative defense. The Attorney General's reliance on People v. Villarreal, 131 P.3d 1119, 1128 (Colo.App.2005), is misplaced. In Villarreal, the division concluded that the trial court's failure to instruct the jury sua sponte on heat of passion mitigation was not plain error. Id. at 1127–28. Plain error did not occur because the instruction would have been contrary to the theory of the case that defendant chose to offer at trial, and the instruction would have been inappropriate, given that “no evidence was presented” which would support mitigation. Id. at 1128.

¶ 12 Here, defendant intended to argue at trial that he was not guilty because he reasonably believed A.J. was at least eighteen years old. However, the pre-trial ruling forced him to present a different theory. Thus, it was the trial court's ruling, and not defendant's strategic choice, which explains his position that he never engaged in sexual acts with A.J. And, unlike in Villarreal, sufficient evidence was presented at trial to support the reasonable belief defense.

¶ 13 Therefore, we turn to the statutory conflict.

B. Statutory Conflict Between Sections 18–1–503.5(1) and 18–7–407

¶ 14 We conclude, in a matter of first impression, that section 18–7–407 prevents a defendant from offering a reasonable belief in age defense to a charge of patronizing a prostituted child.

1. Standard of Review

¶ 15 Appellate courts review questions of statutory interpretation de novo. Vaccaro v. Am. Family Ins. Group, 2012 COA 9, ¶ 15, 275 P.3d 750.

2. Law

¶ 16 When construing a statute, a court's primary goal is to effectuate the intent of the General Assembly. Martin v. People, 27 P.3d 846, 851 (Colo.2001). This requires both “read[ing] and consider[ing the statute] as a whole and ... giv[ing] consistent, harmonious, and sensible effect to all its parts.” State v. Nieto, 993 P.2d 493, 501 (Colo.2000) (internal quotations omitted).

337 P.3d 1245

¶ 17 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. Panama Canal Ry. Co., 208 P.3d 238, 241–42 (Colo.2009) (emphasis in original); accord Gessler v. Doty, 2012 COA 4, ¶ 13, 272 P.3d 1131 (quoting § 2–4–205, C.R.S.2012); People v. Falls, 58 P.3d 1140, 1141 (Colo.App.2002).

3. Application

a. Statutory Conflict

¶ 18 Under section 18–1–503.5(1), which applies generally to offenses under the criminal code, “[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.” But under section 18–7–407, which applies specifically to acts of child prostitution, “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.”

¶ 19 These two provisions conflict. While one provision mandates that the court allow a reasonable belief defense when the victim is at least fifteen years old, the other expressly prohibits such a defense. See People v. Clark, 654 P.2d 847, 848 (Colo.1982) (“[T]he use of the word ‘shall’ in a statute usually is deemed to involve a...