"Sexually Tinged Words" to 10-Year-Old Insufficient to Prove Attempt to Sexually Assault / Entice into Car

An interesting illustration of the evidence required to prove an attempt to commit a crime.

From People v. Johnson, decided today by the Colorado Court of Appeals in an opinion by Judge Lino Lipinsky, joined by Judges Rebecca Freyre and James Casebolt:

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." 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.

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.

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.

Background

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.

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. The interaction lasted less than two minutes. The child told her mother about the incident and the mother reported it to the police….

The Enticement of a Child Statute

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,

(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….

Actus Reus

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 because it distinguishes the offense from the offenses of actual or attempted sexual assault or unlawful sexual contact.

Courts "analyze[] the enticement statute's 'attempt' language in conjunction with the criminal attempt statute." 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." "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." This "merely requires some overt act beyond preparation; however, the overt act need not be the last proximate act necessary to complete the offense."

The People rely on People v. Miranda (Colo. App. 2014), 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. 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. The court thus held that the evidence was sufficient to support his conviction of an attempted sexual assault on the victim.

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.

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. 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;
• 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.

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, 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").

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).

Intent

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….

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. 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 for thoughts alone." …

The trial record is devoid of evidence that Johnson intended to commit a sexual assault…. 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 prove that Johnson intended to invite or persuade her to enter the truck….

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 [prior bad acts] evidence.

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.

The [prior bad acts] 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 drove her to a store. While parked by the store, Johnson kissed the girl on the lips and then let her go.

The two incidents were too different to constitute a "pattern" that could establish Johnson's intent in speaking with A.W. 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."

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." Thus, a kiss on the lips by itself is not an unlawful sexual contact. 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.

For these reasons, the evidence was insufficient to prove that Johnson possessed the intent to commit the offense of enticement of a child….

Note that the Colorado statutes that the prosecutors relied on didn't purport to ban simply saying such sexually tinged things to a child—rather, the statutes required an attempt to commit some further crime.