People v. James Clayton Johnson

     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

                               

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                                         

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, 

, ¶ 16, 

, 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.’” 

 (quoting People v. Harrison, 

, 

). 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, 

).

 Those inferences must be supported by a “logical and convincing

 connection between the facts established and the conclusion




                                    4
  inferred.” People v. Perez, 

, ¶ 25, 

  (quoting People v. Gonzales, 

 (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, 

 (1988). Under this type of analysis, we

  consider the “same quantum of evidence” that the trial court

  admitted. 

.

¶ 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, 

 (Colo. App. 2007) (citing Lockhart, 

). 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, 

, 

 (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.” 

, 

.

¶ 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, 

 (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, 

, 

; see also

  People v. Grizzle, 

 (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, 

 (Colo.

  App. 2011).

¶ 19   The People rely on People v. Miranda, 

, 

, 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, 

. 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, 

. The court

  thus held that the evidence was sufficient to support his conviction

  of an attempted sexual assault on the victim. 

                                    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, 

. 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, 

 (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, 

 (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, 

. 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, 

 (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, 

 (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, 

, 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,

  

 (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.” 

 (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, 

).

¶ 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, 

 (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.”

  

, 

, 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.




                                     18