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People v. Johnson.

2022 COA 139. No. 20CA0764. Enticement of a Child—Insufficient Evidence—CRE 404(b).

December 8, 2022

A.W., a 10-year-old, was walking her dog when a man pulled up in a truck alongside her and asked for her name, her age, and where she lived. A.W. said she was 10, and the man responded that 10 was “the perfect age for a boyfriend.” The man then asked A.W. whether she had “ever touched it,” stating he was “just curious.” A.W. started to walk away, and the man drove down the street in the opposite direction at normal speed. The interaction lasted less than two minutes. A detective identified Johnson as the truck’s owner through the license plate number, and he was charged with enticement of a child in violation of CRS § 18-3-305(1). At trial, CRE 404(b) evidence was introduced showing that, while in Louisiana, Johnson was charged with aggravated kidnapping for persuading a 5-year-old girl to enter his car, driving her to a store, and kissing her on the lips before letting her go. Johnson was convicted as charged.

On appeal, Johnson argued there was insufficient evidence to support his conviction. Pursuant to CRS § 18-3-305(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 younger than 15 to enter a vehicle (2) with intent to commit sexual assault or unlawful sexual contact upon the child. Here, while Johnson made inappropriate statements to A.W., those statements, without more, do not satisfy the “attempted to invite or persuade to enter a vehicle” element of the offense. Further, even if Johnson had attempted to invite or persuade A.W. to enter the truck, the evidence of his words and conduct was not substantial enough to support a conclusion that he intended to commit a sexual assault. In addition, even if it were properly admitted, the CRE 404(b) evidence failed to prove that Johnson intended to engage in an unlawful sexual contact with A.W. Accordingly, there was insufficient evidence to support his conviction.

The judgment of conviction was vacated and the case was remanded with instructions to dismiss the charges against Johnson with prejudice.

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

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