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People v. Price.

2023 COA 96. No. 20CA1960. Patronizing a Prostituted Child—Pimping of a Child—Forgery—Colorado Organized Crime Control Act—Enterprise—Colorado Constitution, Article II—Equal Protection—Habitual Criminal Sentence Enhancer.

October 19, 2023

Price was convicted of violating the Colorado Organized Crime Control Act (COCCA) and 14 other convictions related to human trafficking and forgery. The court adjudicated him a habitual criminal and sentenced him to 304 years to life in the custody of the Department of Corrections (DOC).

On appeal, Price argued that there was insufficient evidence to support the COCCA conviction under McDonald v. People, 2021 CO 64, which was decided after the trial in this case. McDonald overruled prior precedent by changing the entire framework required for a COCCA enterprise. Under McDonald, to establish an “associated-in-fact enterprise,” the prosecutor must prove an ongoing organization of associates who functioned as a continuing unit that existed separately from the pattern of racketeering conduct in which it engaged. Here, the trial court didn’t have the benefit of McDonald when instructing the jury, but the error was obvious at the time of appeal. Further, because there was a reasonable possibility that using the prior precedent contributed to Price’s conviction, the error was substantial, undermined the fundamental fairness of the trial, and cast serious doubt on the reliability of the judgment of conviction. However, the prosecution presented substantial evidence establishing that Price and his associates operated over a period of months and that the associates repeatedly joined Price in planning and committing several predicate crimes. Therefore, sufficient evidence was presented to convict Price of violating COCCA under the previous definition of “enterprise” articulated in People v. James, 40 P.3d 36 (Colo.App. 2001), overruled by McDonald, 2021 CO 64, which rejected the argument that an association or “enterprise” under COCCA must be an ongoing organization operating as a continuing unit and must be separate and apart from the pattern of racketeering activity. And the trial court instructed the jury on the definition of “enterprise” consistent with the statute and model jury instruction at the time. Accordingly, the prosecutor may retry Price on the COCCA charge.

Price further contended that his conviction for possession of a forged instrument should merge with his other forgery convictions. Separate convictions do not violate double jeopardy if the evidence shows distinct and separate offenses. Here, the evidence established at least six instances, on different days, at different locations and involving different actors, where Price, or an associate at his direction, possessed counterfeit money, intended to use it, and passed it at various Target stores. Moreover, the prosecutor presented these acts as legally separable, arguing that Price could be guilty of forgery as a principal when he passed counterfeit money himself, or as a complicitor when associates passed it for him. Therefore, factually distinct conduct supports each of Price’s forgery convictions. Further, nothing in the record shows that the instances on which the jury relied to convict Price of the three forgery charges should merge with the instance on which it relied to convict him of the possession charge. Therefore, merger is not required and double jeopardy was not violated.

Price further argued that his conviction for patronizing a prostituted child must be vacated because it violates his state constitutional right to equal protection. He maintained that the patronizing statute violates equal protection as applied to his conduct because it prohibits essentially the same conduct as the pimping statute but carries a much higher sentence. However, the patronizing statute criminalizes different conduct than the pimping of a child statute, so there was no as-applied equal protection violation.

Lastly, Price asserted that insufficient evidence supports his convictions for pandering of a child and possession of a forgery device, and his habitual criminal sentence enhancer. As to pandering of a child, the prosecution presented evidence that Price knowingly arranged situations for victims to engage in prostitution in exchange for a portion of their pay. As to possession of a forgery device, the evidence showed that both Price and his accomplice Hughes used a printer for forgery and that Price intended for Hughes to use it to produce counterfeit bills that were later used to purchase gift cards and merchandise. Regarding the habitual criminal sentence enhancer, Price contended that the prosecution did not establish that his prior felony convictions arose from separate and distinct criminal episodes. However, the prosecution presented authenticated copies of Price’s prior felony convictions and sufficiently established that the prior felonies were separately brought and tried.

The COCCA conviction was reversed and the case was remanded for a new trial. The judgment was affirmed in all other respects.

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

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