v. Grosko

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


                                                                  SUMMARY
                                                              March 11, 2021

                                

No. 17CA0720, People v. Grosko — Crimes — Pimping; Criminal
Law — Limitation for Commencing Criminal And Juvenile
Delinquency Proceedings — Continuing Offenses;
Constitutional Law — Fifth Amendment — Double Jeopardy —
Multiplicity

        A division of the court of appeals decides two matters of first

impression with respect to the pimping statute, section 18-7-206,

C.R.S. 2020. First, the division concludes pimping is defined by the

statute as a continuing offense. Second, the division concludes that

the unit of prosecution for pimping is defined as per person; that is,

an individual who is supported by funds derived from another’s

prostitution may be prosecuted based on the number of prostitutes

that they receive money or other things of value from. In addition,

the division concludes that the district court did not abuse its
discretion in allowing expert witness testimony in this case. For

these reasons, the judgment of conviction is affirmed.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 17CA0720
Jefferson County District Court No. 15CR3357
Honorable Randall C. Arp, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Jay Grosko,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division II
                         Opinion by JUDGE ROMÁN
                        Welling and Brown, JJ., concur

                          Announced March 11, 2021


Philip J. Weiser, Attorney General, Kevin E. McReynolds, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Robert Jay Grosko, appeals the judgment of

 conviction entered after a jury found him guilty of pimping,

 attempted pimping, solicitation, and pandering. We affirm

 defendant’s convictions. In doing so, we address two matters of

 first impression.

¶2    First, we conclude that the plain language of section 18-7-206,

 C.R.S. 2020, makes pimping a continuing offense. Thus, we affirm

 defendant’s conviction for pimping for acts that occurred both

 within and outside of the statute of limitations.

¶3    Second, we conclude that the unit of prosecution for pimping

 is defined by section 18-7-206 as per person — that is, an

 individual who is supported by funds derived from another’s

 prostitution may be prosecuted based on the number of prostitutes

 that the pimp receives money or other things of value from. We

 therefore affirm defendant’s multiple convictions for attempted

 pimping because the evidence in support of his convictions was

 based on attempts to pimp two separate individuals.

¶4    We also reject defendant’s evidentiary contention.




                                   1
                           I.   Background

¶5    According to the prosecution’s evidence, defendant recruited

 E.W. to work for him as a prostitute in 2015. After E.W. “tr[ied]

 out” by having sex with him, defendant arranged for clients to meet

 with E.W. Defendant and E.W. agreed that he would receive 21% of

 the proceeds of E.W.’s work. E.W. ultimately saw four clients over

 the course of two weeks and made $550, although she never gave

 any of the money to defendant.

¶6    S.T., a prostitute who had previously worked for defendant in

 2013, contacted defendant to arrange a “threesome.” Unbeknownst

 to defendant, S.T. was working for the FBI as a confidential

 informant. Defendant sent E.W. to join S.T. for the “threesome,”

 which turned out to be a sting. After E.W. was arrested, she

 informed police that she was supposed to meet with defendant to

 pay him the 21% of her proceeds that she owed him.

¶7    At the same time as the sting, defendant went to meet A.W.,

 another girl he recruited to work for him as a prostitute — also for

 21% of the proceeds. A.W., however, was a false persona created by

 law enforcement. Defendant was arrested at the same time as the

 sting set up to catch E.W.

                                   2
¶8     The prosecution charged defendant with two counts of

  attempted pimping (one each for E.W. and A.W.), and one count of

  pimping (S.T.). On a motion by defense counsel, the court severed

  trial for the pimping count from the attempted pimping counts.

  After the trial on the attempted pimping charges, a jury convicted

  defendant of two counts of attempted pimping, and two counts of

  the lesser nonincluded offense of solicitation. After the trial on the

  pimping charge, a jury convicted defendant of one count of pimping

  and the lesser nonincluded offense of pandering.

¶9     The trial court sentenced defendant to eight years in prison for

  each of the attempted pimping counts, to be served concurrently;

  ten years in prison for the pimping charge, to be served

  consecutively; and six months in jail, time served, for all of the

  lesser nonincluded offenses.

                               II.   Analysis

¶ 10   On appeal, defendant contends that (1) pimping is not a

  continuing offense, and therefore the trial court lacked jurisdiction

  as to the pimping charge and conviction because the alleged date

  range fell outside of the statute of limitations; (2) in the alternative,

  if pimping is a continuing offense, defendant’s convictions for

                                      3
  attempted pimping were multiplicitous in violation of double

  jeopardy; and (3) the trial court erred by admitting expert

  testimony. We consider and reject each of these contentions.

                   A.   Pimping is a Continuing Offense

              1.    Standard of Review and Applicable Law

¶ 11   Determining whether an offense is continuing is a matter of

  statutory interpretation, which we review de novo. Allman v. People,

  

.

¶ 12   “When the legislature creates an offense, that offense is

  deemed committed once all the substantive elements set forth by

  the legislature are satisfied.” Id. at ¶ 11. “‘However, in certain

  circumstances, a crime continues beyond the first moment when all

  its substantive elements are satisfied,’ and it is deemed a

  continuing offense.” Id. (quoting People v. Thoro Prods. Co., 

 (Colo. 2003)). A continuing offense “continues (and the

  statute of limitations does not begin to run) so long as the illegal

  conduct continues.” Thoro Prods. Co., 

; see also

  § 16-5-401(4), C.R.S. 2020 (“When an offense . . . is based on a

  series of acts performed at different times, the period of limitation



                                     4
  prescribed by this code . . . starts at the time when the last act in

  the series of acts is committed.”).

¶ 13   “A crime is deemed continuous when ‘the explicit language of

  the substantive criminal statute compels such a conclusion,’” or

  when “the nature of the crime involved is such that [the legislature]

  must assuredly have intended that it be treated as a continuing

  one.” Allman, ¶ 12 (alteration in original) (quoting Toussie v. United

  States, 

 (1970)).

                          2.    Additional Facts

¶ 14   In the initial charging documents, the prosecution charged

  defendant with one completed count of pimping regarding E.W. and

  two attempt counts — one referencing S.T. and the other

  referencing A.W. Each charge alleged that defendant’s conduct

  occurred in 2015.

¶ 15   In April 2016, the prosecution moved to amend and correct

  the information to state that (1) defendant’s conduct with respect to

  E.W. constituted attempted pimping, rather than a completed

  offense; and (2) defendant had completed the crime of pimping with

  respect to S.T. between January and December 2013.



                                        5
¶ 16   After a jury convicted defendant of pimping, he moved to

  dismiss the pimping charge as to his conduct related to S.T.

  because the April 2016 amendment fell outside the three-year

  statute of limitations by charging acts that occurred in January

  through March of 2013. The trial court found that the plain

  language of the pimping statute indicates that pimping is a

  continuing offense, and therefore, the statute of limitations did not

  run until December 2016, three years after the last act.

                             3.    Discussion

¶ 17   The pimping statute, section 18-7-206, states:

             Any person who knowingly lives on or is
             supported or maintained in whole or in part by
             money or other thing of value earned, received,
             procured, or realized by any other person
             through prostitution commits pimping, which
             is a class 3 felony.

¶ 18   Where, as here, the statute itself does not explicitly state that

  a crime is a continuing offense, we construe the statute to give

  effect to the legislature’s intent. Allman, ¶ 12. To discern the

  legislature’s intent, we first look to the plain language of the

  statute’s text in the context of the statute as a whole. Id. at ¶ 13.

  Where the statute does not specifically define key terms, we look to


                                     6
  the plain and ordinary meanings of the words, aided by the

  dictionary definition(s). Id. at ¶ 15; § 2-4-101, C.R.S. 2020.

¶ 19   Here, the plain language of section 18-7-206 defines a criminal

  act that takes place over time. In particular, the plain and ordinary

  meaning of the phrase “lives on or is supported or maintained”

  leads us to this conclusion. The dictionary definitions of “living,”

  “support,” and “maintain” each contemplate an ongoing period of

  time. See Black’s Law Dictionary 953 (11th ed. 2019) (defining

  “living” as “[o]ne’s source of monetary support or resources”); id. at

  1481 (defining “support” as “[s]ustenance or maintenance; esp.

  articles such as food and clothing that allow one to live in the

  degree of comfort to which one is accustomed.”); id. at 973 (defining

  “maintenance” in this context as “[f]inancial support given by one

  person to another . . .”); accord Webster’s Third New International

  Dictionary 1323 (2002) (defining “live” in this context as “to

  maintain oneself”); id. at 1362 (defining “maintenance” as “the act of

  providing a means of support for someone”); id. at 2297 (defining

  “support” as “to pay the costs of”).

¶ 20   Our conclusion today is the same as that of California courts

  interpreting identical statutory language. See, e.g., People v. Lewis,

                                     7
  

 (Ct. App. 1978) (“Reasonable interpretation

  of the statutory definition [of pimping] leads to but one conclusion

  [ — ] that the legislative intent was that living or deriving support or

  maintenance from the earnings of a prostitute . . . is an ongoing

  continuing offense that occurs over a period of time.”); see also

  People v. Culuko, 

 (Ct. App. 2000)

  (“[t]ypical continuous course of conduct crimes include . . .

  pimping”); People v. Dell, 

 (Ct. App. 1991).

¶ 21    For these reasons, we conclude that pimping under section

  18-7-206 is a continuing offense and, therefore, affirm defendant’s

  conviction for pimping because his last act in the series of acts that

  constituted pimping S.T. fell within the statute of limitations. See

  § 16-5-401(4).

   B.    The Attempted Pimping Convictions Were Not Multiplicitous

¶ 22    Defendant argues that if pimping is a continuing offense, then

  his convictions for attempted pimping are multiplicitous, resulting

  in a double jeopardy violation. Again, we disagree.




                                     8
              1.    Standard of Review and Applicable Law

¶ 23   Whether convictions are multiplicitous and violate double

  jeopardy are questions of statutory interpretation that we review de

  novo. Allman, ¶ 12.

¶ 24   The Double Jeopardy Clauses of the United States and

  Colorado Constitutions prohibit punishing an individual twice for

  the same offense. See U.S. Const. amend. V; Colo. Const. art. II,

  § 18. “Multiplicity” prohibits “the charging of multiple counts and

  the imposition of multiple punishments for the same criminal

  conduct” and, therefore, implicates double jeopardy principles.

  Woellhaf v. People, 

 (Colo. 2005).

¶ 25   In these circumstances, we apply “a two-prong test for

  determining the legislatively prescribed unit of prosecution and

  then applying the legislative prescription to the facts of the case.”

  

. First, we examine the scope of prosecution authorized

  by the statutory prescription; and second, we examine “all the

  evidence introduced at trial to determine whether the evidence on

  which the jury relied for conviction was sufficient to support

  distinct and separate offenses.” Quintano v. People, 

,



                                     9
  592 (Colo. 2005); see also Woellhaf, 

; People v.

  Williams, 

 (Colo. 1982).

                            2.   Discussion

¶ 26   Section 18-2-101(1), C.R.S. 2020, defines criminal attempt:

            A person commits criminal attempt if, acting
            with the kind of culpability otherwise required
            for commission of an offense, he engages in
            conduct constituting a substantial step toward
            the commission of the offense. A substantial
            step is any conduct, whether act, omission, or
            possession, which is strongly corroborative of
            the firmness of the actor’s purpose to complete
            the commission of the offense.

¶ 27   Once again, the pimping statute states:

            Any person who knowingly lives on or is
            supported or maintained in whole or in part by
            money or other thing of value earned, received,
            procured, or realized by any other person
            through prostitution commits pimping, which
            is a class 3 felony.

  § 18-7-206.

¶ 28   Thus, we must first determine what unit of prosecution the

  legislature intended to punish by proscribing a substantial step

  toward pimping. See Woellhaf, 

.

¶ 29   “The unit of prosecution is the manner in which a criminal

  statute permits a defendant’s conduct to be divided into discrete


                                   10
  acts for purposes of prosecuting multiple offenses.” 

 The

  legislature determines the allowable unit of prosecution, which, in

  turn, determines the scope of protection offered by the double

  jeopardy clause. 

 Thus, we look exclusively to the statute to

  determine the unit of prosecution that the legislature intended. 

  In doing so, we again look to the plain and ordinary meaning of the

  statutory language. 

¶ 30   Based on the plain language of the pimping statute, we

  conclude that the legislature intended the unit of prosecution for

  pimping to be each person from whom a defendant knowingly

  derives support through acts of prostitution. In this context,

  “person” is a noun in its singular form, which is defined as “[a]

  human being.” Black’s Law Dictionary at 137 (emphasis added);

  accord Webster’s Third New International Dictionary at 1686

  (defining “person” as “an individual human being”). Thus, the

  phrase “by any other person” means that a defendant accused of

  pimping can be subject to individual charges of pimping per

  prostitute from whom he is deriving benefit as a result of their

  prostitution.



                                    11
¶ 31   A view of the legislature’s proscription of similar criminal

  conduct — child pimping — confirms our interpretation of the

  pimping statute in this regard. People v. Jones, 

  (“One of the aids we may employ is to look to other statutes where

  the legislature has defined the term at issue, particularly when

  those statutes should be read in pari materia.”). The statute that

  proscribes pimping of a child, section 18-7-405, C.R.S. 2020,

  contains nearly identical language to the pimping statute, but in

  place of “money . . . realized by any other person,” the child pimping

  statute reads “money . . . realized by a child.” (Emphasis added.) A

  plain reading of this statute indicates that the unit of prosecution

  for pimping a child is per child, because “a child” is written in the

  singular. Therefore, we read “any other person” in the pimping

  statute as a signal of the legislature’s intent to designate one charge

  per person prostituted. See Southard v. Miles, 

, 898-

  99 (Colo. 1986) (construing statute by reference to similar phrase in

  unrelated statute); see also Martinez v. People, 

  (Colo. 2003) (statutes concerning the same subject matter must be

  construed in pari materia to ascertain legislative intent and to avoid

  inconsistencies).

                                    12
¶ 32   Accordingly, we conclude that the legislature intended that the

  unit of prosecution for attempted pimping is conduct that

  constitutes a substantial step toward living on money earned by

  another individual through that individual’s prostitution.

¶ 33   Next, in light of this unit of prosecution, it is undisputed that

  the facts and the manner of the presentation of the evidence at trial

  supported defendant’s separate convictions on two counts of

  attempted pimping — one for his conduct with respect to E.W. and

  the other for his conduct with respect to A.W. See Woellhaf, 

.

¶ 34   Therefore, defendant’s two convictions for attempted pimping

  are not multiplicitous and do not violate double jeopardy.

                   C.    The Expert’s Testimony Was Proper

¶ 35   Defendant next contends that the district court erred by

  admitting expert testimony that improperly profiled pimps. We

  disagree.

              1.        Standard of Review and Applicable Law

¶ 36   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Stewart, 

 (Colo. 2002). A trial



                                       13
  court abuses its discretion when its ruling is arbitrary,

  unreasonable, or unfair. 

¶ 37   Under CRE 702, a trial court may permit a qualified witness to

  give expert testimony that will help the jury understand the

  evidence or determine a fact in issue. In determining whether the

  proposed testimony would be helpful to the jury, the trial court

  must consider whether the proposed testimony is logically relevant

  and whether its probative value is substantially outweighed by the

  danger of unfair prejudice under CRE 403. Salcedo v. People, 

 (Colo. 2000). “In reviewing the court’s ruling

  regarding expert testimony, we afford the evidence the maximum

  probative value and minimum unfair prejudice.” People v. Conyac,

  

.

¶ 38   Courts have generally condemned the use of profiles as

  substantive evidence of guilt. See Salcedo, 

.

  “However, the ‘profile’ label is not helpful in distinguishing

  admissible from inadmissible expert testimony.” Conyac, ¶ 26.

  “Instead, courts focus on the purpose for which the evidence is

  offered: whether it is improper propensity evidence designed to

  show the defendant’s character, or whether it instead seeks to aid

                                     14
  the jury in understanding a pattern of behavior beyond its normal

  experience.” 

 In other words, “experts may testify regarding the

  modus operandi of a certain category of criminals where those

  criminals’ behavior is not ordinarily familiar to the average

  layperson.” 

 (quoting United States v. Long, 

  (D.C. Cir. 2003)).

                           2.   Additional Facts

¶ 39   The prosecution tendered and, over defense counsel’s

  objection, the trial court qualified Sergeant Daniel Steele as an

  expert in the areas of commercial sex trafficking, pimping, and

  prostitution. Steele testified that he had no specific knowledge of

  the case. In his testimony, Steele discussed the prostitution trade

  generally and the nature of the relationship between pimps and

  prostitutes, including

            how the various “levels of employment” in prostitution

             are separated based on the act or acts that the prostitute

             is willing to perform;

            the subtle and more overt ways pimps persuade or coerce

             prostitutes to move up a level;



                                      15
           the items that prostitutes often keep with them for work,

            such as condoms, lubricant, makeup, a change of

            clothing, and a cell phone;

           the nature of a pimp’s role, including advertising to

            clients and setting up engagements between clients and

            prostitutes;

           the details of engagements that pimps arrange with

            clients, such as location, method of payment, and

            services;

           how pimps dictate prices; and

           how other individuals, such as a recruiter and a “bottom

            bitch,” can assist pimps with recruitment of new

            prostitutes and arrange engagements.

                            3.    Discussion

¶ 40   Relying on Salcedo, 

, defendant contends that the

  trial court erred by admitting Steele’s expert testimony because it

  amounted to improper profile evidence, was irrelevant, and was

  unduly prejudicial.

¶ 41   We have reviewed the record and perceive no abuse of

  discretion. Steele’s testimony was proper modus operandi
                                   16
  testimony that was relevant, as it helped rebut defendant’s theory of

  defense that he was merely pretending to be a pimp to entice

  women to sleep with him. Indeed, Steele’s testimony “alert[ed] [the

  jury] to the possibility that combinations of seemingly innocuous

  events may indicate criminal behavior.” United States v. King, 

 (D. Haw. 2010) (quoting United States v.

  Johnson, 

 (9th Cir. 1984)). Moreover, the

  testimony helped place other witnesses’ testimony — namely, S.T.’s

  and E.W.’s — “into context and provided the jury a means to assess

  their credibility.” United States v. Brooks, 

  (9th Cir. 2010) (the trial court properly admitted detective’s expert

  testimony on “the business of prostitution and the relationships

  between pimps and prostitutes”); see also Conyac, ¶ 28 (“[W]here

  defendant denied that he committed any offense, the fact that his

  modus operandi was consistent with the modus operandi of sex

  offenders generally made it more likely than not that he committed

  the offenses at issue.”).

¶ 42   We reject defendant’s contention that Steele’s testimony was

  improper profile testimony that presented an “undue risk that the

  jurors would substitute Steele’s profile testimony for their own

                                    17
  opinion.” Steele testified that he was not involved in the

  investigation of this case and did not opine as to whether defendant

  was a pimp or had the characteristics of one. See People v.

  Ramirez, 

 (Colo. App. 1999) (distinguishing between

  improper profile evidence and permissible modus operandi

  evidence); cf. Salcedo, 

 (a witness may not offer an

  “ill-defined compilation[]” of characteristics common to a certain

  type of offender and then opine that because the defendant has

  those characteristics, he is likely to be that type of offender).

¶ 43   Further, we are not persuaded that Steele’s testimony was

  unduly prejudicial under CRE 403. The testimony had significant

  probative value, as it bore on defendant’s theory of defense and the

  elements of the crimes charged. We discern no record support for

  defendant’s contentions that Steele’s testimony “likely inflamed the

  passions and sympathies of the jurors,” was misleading, or invited

  jurors “to substitute Steele’s . . . testimony for their own opinion of

  whether [defendant] met the legal elements of pimping.” In sum,

  affording the testimony the maximum probative value and the

  minimum unfair prejudice, as we are required to do, we cannot say

  the trial court abused its discretion by admitting it. Conyac, ¶ 23.

                                     18
                           III.   Conclusion

¶ 44   The judgment of conviction is affirmed.

       JUDGE WELLING and JUDGE BROWN concur.




                                   19