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People v. Grosko.

2021 COA 28. No. 17CA0720.  Criminal Law—Prostitution—Continuing Offense—Multiplicitous—Double Jeopardy—Unit of Prosecution—Expert Testimony.

March 11, 2021

Defendant recruited E.W. to work for him as a prostitute. S.T., a confidential FBI informant who had previously worked for defendant as a prostitute, contacted defendant to arrange a “threesome.” Defendant sent E.W. to join S.T. for the threesome, which was a sting operation. At the same time as the sting, defendant met with A.W., another girl he recruited to work for him as a prostitute, who was also undercover law enforcement. 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 defense counsel’s motion, the court severed trials for the pimping count from the attempted pimping counts. Juries convicted defendant of two counts of attempted pimping and two counts of the lesser nonincluded offense of solicitation, and one count of pimping and the lesser nonincluded offense of pandering.

On appeal, defendant contended that the trial court lacked jurisdiction as to the pimping charge and conviction because pimping is not a continuing offense and the alleged date range fell outside of the statute of limitations. However, the plain language of CRS § 18-7-206 makes pimping a continuing offense, and defendant’s last act in the series of acts that constituted pimping S.T. fell within the statute of limitations. Therefore, the court did not err.

Alternatively, defendant argued that if pimping is a continuing offense, his convictions for attempted pimping were multiplicitous in violation of double jeopardy. The unit of prosecution for pimping is each person from whom a defendant knowingly derives support through acts of prostitution. 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. Here, the record supported defendant’s separate convictions on attempted pimping with respect to E.W. and A.W. Therefore, the convictions were not multiplicitous and did not violate double jeopardy.

Defendant next contended that the district court erred by admitting expert testimony that improperly profiled pimps. However, the expert’s testimony was proper modus operandi testimony relevant to rebutting defendant’s theory of defense that he was merely pretending to be a pimp to entice women to sleep with him. Further, the testimony was not unduly prejudicial under CRE 403. Therefore, the trial court did not abuse its discretion by admitting it.

The judgment of conviction was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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