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.
