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 December 8, 2022
2022COA139
No. 20CA0764, People v. Johnson — Crimes — Enticement of a Child — Attempt to Invite or Persuade a Child — Substantial Step
A division of the court of appeals considers whether evidence
that a defendant uttered sexually tinged words to a child standing
on a sidewalk while the defendant was in a vehicle was sufficient to
prove that the defendant attempted to invite or persuade the child
to enter the vehicle or intended to sexually assault or engage in
unlawful sexual contact with the child. The division holds that (1)
the defendant’s words alone were insufficient to establish the
“substantial step” necessary to prove that he attempted to invite or
persuade the child to enter the vehicle and (2) the defendant’s
words were insufficient to establish that he intended to commit
sexual assault or engage in unlawful sexual contact. The division thus concludes that the prosecution did not introduce sufficient
evidence to prove the offense of enticement of a child. Accordingly,
the division vacates the defendant’s conviction and remands to the
trial court with instructions to dismiss the charges with prejudice. COLORADO COURT OF APPEALS 2022COA139
Court of Appeals No. 20CA0764 Jefferson County District Court No. 19CR2061 Honorable Lily W. Oeffler, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Clayton Johnson,
Defendant-Appellant.
JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE LIPINSKY Freyre and Casebolt*, JJ., concur
Announced December 8, 2022
Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant- Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2022. ¶1 The crime of enticement of a child requires proof beyond a
reasonable doubt that the defendant (1) invited, persuaded, or
attempted to invite or persuade “a child under the age of fifteen
years to enter any vehicle, building, room, or secluded place,”
(2) “with the intent to commit sexual assault or unlawful sexual
contact upon said child.” § 18-3-305(1), C.R.S. 2022. In this case,
we consider whether the evidence that defendant, James Clayton
Johnson, uttered sexually tinged words to a child who was standing
on a sidewalk with her dog while he was in a vehicle was sufficient
to prove that he attempted to invite or persuade the child to enter
the vehicle or intended to sexually assault or engage in unlawful
sexual contact with the child.
¶2 First, we hold that Johnson’s words alone were insufficient to
establish the “substantial step” necessary to prove that he
attempted to invite or persuade the child to enter the vehicle. Thus,
the words Johnson uttered did not prove the wrongful conduct
element of the offense. Second, we hold that Johnson’s words were
also insufficient to establish that he intended to commit sexual
assault or engage in unlawful sexual contact.
1 ¶3 For these reasons, we conclude that the prosecution did not
introduce sufficient evidence to prove the offense of enticement of a
child and vacate Johnson’s conviction.
I. Background
¶4 The evidence introduced at trial established that ten-year-old
A.W. was walking her dog in her neighborhood when a man pulled
up in a truck alongside her. Johnson contends that the
prosecution failed to prove that he was that man. For purposes of
this opinion, however, we assume that Johnson was the individual
who was driving the truck. As we explain below, even if the
prosecution linked Johnson to the incident, the evidence presented
at trial was insufficient to support his conviction for enticement of a
child.
¶5 The man complimented A.W.’s dog and asked for her name
and age and where she lived. When A.W. said she was ten, the man
responded that ten was “the perfect age for a boyfriend.” The man
then asked A.W. whether she had “ever touched it” and added that
he was “just curious.” When A.W. started to walk away, the man
drove down the street in the opposite direction at a normal speed.
2 The interaction lasted less than two minutes. The child told her
mother about the incident and the mother reported it to the police.
¶6 A few days later, A.W.’s mother reported to the police that she
had seen a man and a truck that matched A.W.’s descriptions of the
man who had approached her and the truck he had been driving.
A.W.’s mother provided the police with the license plate number of
the truck she had seen. A detective identified Johnson as the
owner of that truck through the license plate number. Johnson
was arrested and charged with enticement of a child in violation of
section 18-3-305(1) and violation of bail bond conditions imposed in
another case. He was tried before a jury on the first charge and,
after his conviction, the bail bond charge was dismissed.
II. Analysis
¶7 Johnson contends that his conviction should be vacated
because the evidence introduced at trial was insufficient to support
his conviction. Alternatively, he argues that his conviction should
be reversed because the trial court erred by admitting evidence of a
prior act under CRE 404(b), failing to properly instruct the jury, and
failing to appoint new counsel for him. The CRE 404(b) evidence
showed that, while in Louisiana, Johnson had persuaded a five-
3 year-old girl to enter his car, driven her to a store, and kissed her
on the lips before letting her go. He was charged with aggravated
kidnapping for those acts. Because we agree that the evidence,
including the CRE 404(b) evidence, was insufficient to sustain
Johnson’s conviction for enticement of a child, we do not reach the
merits of his other arguments.
A. Standard of Review
¶8 We review sufficiency of the evidence claims de novo.
Gorostieta v. People, 2022 CO 41, ¶ 16, 516 P.3d 902, 905. To
sustain a conviction, we consider “whether the evidence, ‘viewed as
a whole and in the light most favorable to the prosecution, is
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant is guilty of the charge beyond a reasonable
doubt.’” Id. (quoting People v. Harrison, 2020 CO 57, ¶ 32, 465 P.3d
16, 23). We give the prosecution “the benefit of every reasonable
inference which might be fairly drawn from the evidence.” Id. at
¶ 17, 516 P.3d at 905 (quoting Harrison, ¶ 32, 465 P.3d at 23).
Those inferences must be supported by a “logical and convincing
connection between the facts established and the conclusion
4 inferred.” People v. Perez, 2016 CO 12, ¶ 25, 367 P.3d 695, 701
(quoting People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983)).
¶9 In conducting a sufficiency of the evidence analysis, we
consider all evidence that the trial court admitted at trial, even if we
determine that the court erred by admitting certain of that evidence.
This is so because “a reversal for insufficiency of the evidence
should be treated no differently than a trial court’s granting a
judgment of acquittal at the close of all the evidence.” Lockhart v.
Nelson, 488 U.S. 33, 41-42 (1988). Under this type of analysis, we
consider the “same quantum of evidence” that the trial court
admitted. Id. at 42.
¶ 10 Thus, “in determining whether the evidence in this case is
sufficient to support defendant’s conviction, it is permissible for us
to consider the [challenged evidence]” even if we were to conclude
that the court improperly admitted it. People v. Williams, 183 P.3d
577, 581 (Colo. App. 2007) (citing Lockhart, 488 U.S. at 40). By
contrast, “where reversal is predicated upon trial error consisting of
the reception of inadmissible evidence, remand for a new trial is
proper . . . and an appellate court should not review the remaining
evidence in order to determine whether it is sufficient to sustain the
5 conviction.” People v. Sisneros, 44 Colo. App. 65, 68, 606 P.2d
1317, 1319 (1980) (emphasis added).
¶ 11 If we conclude that a conviction must be reversed “solely
because of evidentiary insufficiency, the double jeopardy clause of
the United States Constitution requires entry of a judgment of
acquittal.” Id. at 67, 606 P.2d at 1319.
¶ 12 We therefore consider whether the evidence presented at
Johnson’s trial, including the CRE 404(b) evidence that Johnson
challenges as inadmissible, was sufficient to support his conviction.
Thus, we need not first decide whether the trial court erred by
admitting the CRE 404(b) evidence.
B. The Enticement of a Child Statute
¶ 13 To convict Johnson of enticement of a child, the prosecution
was required to prove the following elements:
(1) in the State of Colorado, at or about the date and place
charged,
(2) with the intent,
(3) to commit the crime of sexual assault or unlawful sexual
contact upon a child,
6 (4) Johnson invited, persuaded, or attempted to invite or
persuade a child, under the age of fifteen,
(5) to enter any vehicle, building, room, or secluded place.
See § 18-3-305(1); COLJI-Crim. 3-3:15 (2021).
¶ 14 A “sexual assault” is the “knowing[] inflict[ion] [of] sexual
intrusion or sexual penetration on a victim” if, as relevant here, the
actor knows the victim does not consent or the “actor knows that
the victim is incapable of appraising the nature of the victim’s
conduct.” § 18-3-402(1), C.R.S. 2022.
“Sexual contact” includes the
knowing touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.
§ 18-3-401(4)(a), C.R.S. 2022. An “unlawful sexual contact” occurs
if, as applicable here, the “actor knows that the victim does not
consent” or the “actor knows that the victim is incapable of
appraising the nature of the victim’s conduct.” § 18-3-404(1),
C.R.S. 2022. A person can also commit unlawful sexual contact by
knowingly inducing or coercing a child to expose his or her
7 “intimate parts,” as defined in section 18-3-401(2), for the purpose
of “the actor’s own sexual gratification.” § 18-3-404(1.5).
C. Analysis
¶ 15 Johnson specifically argues that the evidence was insufficient
to prove the wrongful act (actus reus), intent, and identity elements
of the enticement of a child offense. In this case, the actus reus
element of the offense was an alleged attempt to invite or persuade
a child to enter a vehicle with the defendant.
¶ 16 We agree that the evidence admitted at trial, including the
CRE 404(b) evidence, viewed as a whole and in the light most
favorable to the prosecution, was not substantial and sufficient to
support a conclusion by a reasonable mind that Johnson
(1) attempted to invite or persuade A.W. to enter the vehicle, or
(2) intended to sexually assault A.W. or engage in an unlawful
sexual contact with her.
1. Actus Reus
¶ 17 Because, as the parties agree, the record does not show that
Johnson expressly invited or persuaded A.W. to enter the truck, we
consider whether he attempted to do so. The location element of
the enticement of a child offense — here, a truck — is significant
8 because it distinguishes the offense from the offenses of actual or
attempted sexual assault or unlawful sexual contact. See
Commonwealth v. Hall, 952 N.E.2d 951, 957 (Mass. App. Ct. 2011)
(noting that “a primary purpose of the child enticement statute . . .
is to provide further protection for children against the risks of
danger or harm that lurk when a child is lured to a place chosen
. . . by a predator” because the offense would otherwise “have little
or no difference from the crime that the defendant was alleged to
have intended”).
¶ 18 Courts “analyze[] the enticement statute’s ‘attempt’ language
in conjunction with the criminal attempt statute.” People v.
Vecellio, 2012 COA 40, ¶¶ 45-46, 292 P.3d 1004, 1015; see also
People v. Grizzle, 140 P.3d 224, 226 (Colo. App. 2006). A person
commits criminal attempt if, with the requisite intent, he or she
“engage[d] in conduct constituting a substantial step toward the
commission of the offense.” § 18-2-101(1), C.R.S. 2022. “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.” Id.
This “merely requires some overt act beyond preparation; however,
9 the overt act need not be the last proximate act necessary to
complete the offense.” People v. Boles, 280 P.3d 55, 63-64 (Colo.
App. 2011).
¶ 19 The People rely on People v. Miranda, 2014 COA 102, 410 P.3d
520, to support their argument that a defendant can take a
substantial step toward the commission of the offense of enticement
of a child even if the victim disengaged before the defendant
completed the “last proximate act.” In that case, the defendant was
driving the victim and another girl when he stopped his car in a
dark alley, asked the girls to play “truth or dare,” and dared the
other girl to touch his penis and place it in her mouth, which she
did. Id. at ¶¶ 3, 77-78, 410 P.3d at 524, 535. Although the victim
had disengaged from the game before the defendant could dare her
to do anything, a division of this court concluded that the
defendant’s overall conduct showed that he had taken “all steps
preparatory” to assaulting the victim in the same way he had
assaulted the other girl. Id. at ¶ 78, 410 P.3d at 535. The court
thus held that the evidence was sufficient to support his conviction
of an attempted sexual assault on the victim. Id.
10 ¶ 20 The facts in this case are materially different from those in
Miranda. The People argue that Johnson took substantial steps
toward inviting or persuading A.W. to enter the truck by
(1) stopping the truck next to A.W. upon seeing her alone with her
dog; (2) attempting to lower A.W.’s guard by complimenting the dog;
(3) telling her that ten was a “perfect age for a boyfriend”; and
(4) asking A.W. whether she had “ever touched it.” They assert
that, by walking away, A.W. prevented Johnson from completing the
“last proximate act,” which, they allege, “would have been an
explicit invitation” to enter the truck, like the invitation to the
victim to play “truth or dare” in Miranda. We are not persuaded.
¶ 21 Unlike in Miranda, Johnson’s actions were not “strongly
corroborative” of the “firmness of [a] purpose to complete” the actus
reus — inviting or persuading A.W. to enter the truck. See
§ 18-2-101(1); see Miranda, ¶ 78, 410 P.3d at 535. None of
Johnson’s actions established or even suggested that he wanted
A.W. to enter the truck. It is important to note what the record
evidence did not show:
• Johnson did not say anything to A.W. about the truck,
much less expressly or implicitly ask her to enter it;
11 • he did not gesture for A.W. to enter the truck;
• Johnson did not make any movement toward A.W. or the
door of the truck;
• he did not open the door of the truck to allow her to
enter;
• he did not step out of the truck;
• after A.W. began walking away, he took no actions to stop
her, did not ask her to stop, and did not say or do
anything to attempt to convince her to walk back to the
truck; and
• when A.W. walked off, Johnson did not follow her; rather,
he drove away in the opposite direction at a normal
speed.
¶ 22 Although Johnson’s statements to A.W. were highly
inappropriate, making inappropriate statements to a child or asking
an underaged stranger personal questions, without more, does not
satisfy the “attempted to invite or persuade to enter a vehicle”
element of the offense of enticement. Cf. Commonwealth v. Hart, 28
A.3d 898, 910 (Pa. 2011) (holding that “an attempt to lure . . . does
not occur upon the mere offer of a ride in a motor vehicle to a child,
12 but, rather, involves only situations where a child is provided a
further enticement or inducement to enter the vehicle”); United
States v. Isabella, 918 F.3d 816, 832 (10th Cir. 2019) (assessing
“substantial steps toward persuasion or enticement to engage in
sexual activity” and describing the “rough line between ‘harmless
banter’ and illegal inducement”).
¶ 23 Thus, the evidence did not establish that, by the time A.W.
walked away, Johnson had taken “all steps preparatory” to the
offense of enticement of a child. See Miranda, ¶ 78, 410 P.3d at
535. Therefore, the evidence introduced at trial was insufficient to
prove the actus reus element of the offense of enticement of a child
— that Johnson “attempt[ed] to invite or persuade [A.W.] to enter”
the truck. See § 18-3-305(1).
2. Intent
¶ 24 Even if Johnson had attempted to invite or persuade A.W. to
enter the truck, the prosecutor did not introduce “substantial and
sufficient” evidence that he intended to commit a sexual assault or
engage in an unlawful sexual contact. See Montes-Rodriguez v.
People, 241 P.3d 924, 927 (Colo. 2010).
13 ¶ 25 The record evidence does not tell us what Johnson was
thinking during the encounter beyond an intent to engage in an
inappropriate conversation with a child. We acknowledge that
Johnson’s comment that A.W. was the “perfect age for a boyfriend”
and his question whether she had “ever touched it” could indicate
to a reasonable mind that Johnson had sexual thoughts about A.W.
However, there is too large an inferential leap between those
thoughts and a formed intent to act upon them by committing
sexual assault or engaging in an unlawful sexual contact. See
Perez, ¶ 25, 367 P.3d at 701 (noting that a “verdict cannot be
supported by guessing, speculation, conjecture, or a mere modicum
of relevant evidence,” and the inferences drawn from the evidence
“must be supported by a ‘logical and convincing connection between
the facts established and the conclusion inferred’”) (citations
omitted). Unlike the fourteenth century English statute that
criminalized imagining the death of the King, our laws “do not
punish people’s culpable mental states unless they take some
implementing action.” Adam J. Kolber, Two Views of First
Amendment Thought Privacy, 18 U. Pa. J. Const. L. 1381, 1398
(2016). “It is fundamental that a civilized society does not punish
14 for thoughts alone.” United States v. $11,500.00 in U.S. Currency,
869 F.3d 1062, 1072 (9th Cir. 2017) (quoting Model Penal Code
§ 2.01 cmt. (Am. L. Inst. 1985)).
¶ 26 We next address the evidence that the People contend shows
Johnson’s intent to commit a sexual assault upon, or engage in
wrongful sexual contact with, A.W.
a. Intent to Commit Sexual Assault
¶ 27 The trial record is devoid of evidence that Johnson intended to
commit a sexual assault. In People v. Derrera, the Colorado
Supreme Court concluded that evidence establishing that the
defendant touched the victim’s thigh and asked her to go to his
apartment, “without more, is insufficient . . . to establish any
‘intent’ to commit the crime of second-degree sexual assault.” 667
P.2d 1363, 1371 (Colo. 1983). Here, although Johnson made
inappropriate comments with sexual connotations, he expressed
even less of an intent to engage in a sexual assault than did the
defendant in Derrera. Johnson neither touched A.W. nor asked her
to enter the truck. Johnson’s words were insufficient to establish
an intent to sexually assault A.W., just as they were insufficient to
15 prove that Johnson intended to invite or persuade her to enter the
truck.
b. Intent to Engage in an Unlawful Sexual Contact
¶ 28 Similarly, the evidence introduced at Johnson’s trial fell short
of proving that he intended to engage in an unlawful sexual contact.
To establish Johnson’s alleged intent to engage in an unlawful
sexual contact, the People point to the nature of Johnson’s
comments and to the CRE 404(b) evidence.
¶ 29 As noted above, although the nature of Johnson’s comments
might suggest he had sexual thoughts while speaking with A.W.,
the evidence of his words and conduct was not “substantial and
sufficient to support a conclusion by a reasonable mind” that he
intended to act upon such thoughts. See Gorostieta, ¶ 16, 516 P.3d
at 905 (quoting Harrison, ¶ 32, 465 P.3d at 23).
¶ 30 The CRE 404(b) evidence, even if properly admitted, also did
not prove that Johnson intended to engage in unlawful sexual
contact with A.W. That evidence showed that, in the Louisiana
incident, Johnson told the five-year-old girl that she should “get in
the car” because it was too dangerous for her to play in the street.
She complied. He said that he would take her home but instead
16 drove her to a store. While parked by the store, Johnson kissed the
girl on the lips and then let her go.
¶ 31 The two incidents were too different to constitute a “pattern”
that could establish Johnson’s intent in speaking with A.W. See
People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002) (“A greater number
of incidents of similar behavior is important in proving that it is
directed or purposive rather than coincidental.”). The two incidents
were similar only in that they involved a man stopping his vehicle in
a residential area to speak with a young girl for a few minutes. In
the Louisiana case, Johnson told the child to enter his car and
kissed her, but he did not say anything of a sexual nature to her.
By contrast, Johnson did not ask A.W. to enter the truck and made
no physical contact with her, although he made sexually tinged
comments to her. As in People v. Williams, the evidence of “a design
to commit crimes like the one charged was virtually nonexistent.”
2020 CO 78, ¶ 22, 475 P.3d 593, 600.
¶ 32 And even if Johnson intended to do to A.W. what he had done
to the girl in Louisiana — kiss her on the lips — the General
Assembly did not include a mouth in the definition of “intimate
part.” See § 18-3-401(2). Thus, a kiss on the lips by itself is not an
17 unlawful sexual contact. See § 18-3-401(4)(a). Nothing that
Johnson did to the child in Louisiana could support a conclusion
by a reasonable mind that he intended to engage in an unlawful
sexual contact with A.W.
¶ 33 For these reasons, the evidence was insufficient to prove that
Johnson possessed the intent to commit the offense of enticement
of a child.
III. Conclusion
¶ 34 Johnson’s judgment of conviction is vacated. The case is
remanded to the trial court with instructions to dismiss the charges
against Johnson with prejudice.
JUDGE FREYRE and JUDGE CASEBOLT concur.