People v. Johnson

549 P.3d 957

2024 CO 32

The PEOPLE of the State of Colorado, Petitioner,

v.James Clayton JOHNSON, Respondent.

Supreme Court Case No. 23SC51

Supreme Court of Colorado.

May 28, 2024

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 20CA764

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Mooney Law Office, PLLC, Nicole M. Mooney, Golden, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 When James Clayton Johnson noticed ten-year-old A.W. walking her dog, he drove into the opposing lane of traffic to pull his truck up beside her. Johnson commented on her dog and asked for its name. He then asked A.W. for her name, age, and address.

Upon hearing her response, Johnson remarked that ten was "the perfect age for a boyfriend." He then asked A.W. if she had ever "touched it." Alarmed, A.W. walked away. Based on these events—supplemented by CRE 404(b) evidence of Johnson’s previous behavior with a five-year-old girl in Louisiana—a jury convicted Johnson of enticement of a child under section 18-3-305(1), C.R.S. (2023).

¶2 A division of the court of appeals vacated Johnson’s conviction on the ground that the evidence was insufficient to prove the offense of enticement. People v. Johnson, 2022 COA 139, ¶¶ 33–34, 525 P.3d 1106, 1112. Specifically, the division concluded that Johnson’s conduct with A.W., taken together with the CRE 404(b) prior act evidence (assuming it was properly admitted), was insufficient to show that Johnson had attempted to invite or persuade A.W. to enter his truck, or that he intended to commit unlawful sexual contact. Id. at ¶¶ 23, 33, 525 P.3d at 1111–12. Accordingly, the division vacated Johnson’s conviction without addressing his challenge to the admissibility of the CRE 404(b) evidence or the merits of his other arguments on appeal. Id. at ¶¶ 7, 34, 525 P.3d at 1108, 1112. We granted the People’s petition for certiorari to review the division’s sufficiency determination.¹

¶3 Viewing the evidence in the light most favorable to the prosecution, as our sufficiency standard requires, Manjarrez v. People, 2020 CO 53, ¶ 20, 465 P.3d 547, 551, we hold that the division erred in concluding that the evidence was insufficient to sustain Johnson’s conviction. We therefore reverse the division’s sufficiency determination, reinstate Johnson’s conviction, and remand the case to the court of appeals to evaluate Johnson’s remaining arguments on appeal.

I. Facts and Procedural History

¶4 Ten-year-old A.W. was walking her dog near her home when a black truck crossed into an opposing lane of traffic to pull up beside her. The truck stopped about two feet away from A.W. with the driver-side window facing her. The driver, later identified as Johnson, rolled down his window and began to talk to her.

¶5 Johnson told A.W. that her dog was cute and asked for the dog’s name. He also whistled or clicked his tongue toward the dog, but the dog did not respond.

¶6 The conversation then took a concerning turn, First, Johnson asked for AW.’s name, age, and address. Upon hearing that she was ten, he commented that ten was "the perfect age for a boyfriend." He then asked A.W., "Have you ever touched it," apparently referring to a penis, and told her that he was "just curious." During this conversation, Johnson turned to face A.W., leaning both his arms on the window frame, only a few feet from A.W. However, Johnson never left his truck, opened the door, offered A.W. anything, asked her to enter the truck, touched her, or otherwise reached out toward her.

¶7 Feeling "terrified," A.W. walked away, taking care not to walk toward her home to avoid revealing to Johnson exactly where she lived. Johnson began to drive away, watching her in his side mirror as she walked. Their interaction lasted a little more than one minute.

¶8 Based on this encounter, the People charged Johnson with one count of enticement of a child pursuant to section 18-3-305(1). At trial, the jury heard testimony from, among others, A.W., A.W.’s mother, and two neighbors whose home security cameras captured video of the incident.

¶9 The People also introduced CRE 404(b) evidence of a separate incident that occurred in Louisiana in 2017. There, Johnson persuaded a five-year-old girl to get into his car so he could take her home. He instead drove her to a nearby store and kissed her on the lips before telling her to get out of the car.² The trial court admitted this evidence for the limited purposes of proving Johnson’s identity and showing that Johnson possessed the intent the child enticement statute requires.

¶10 The jury found Johnson guilty, and the court sentenced him to six years to life in the custody of the Department of Corrections. Johnson appealed, arguing primarily that the People’s evidence was insufficient to support his conviction. Johnson, ¶ 7, 525 P.3d at 1108. In addition, Johnson argued that the trial court reversibly erred by (1) admitting the CRE 404(b) evidence, (2) failing to instruct the jury as to the definition of "propensity," and (3) denying Johnson’s request for substitute counsel when Johnson raised concerns about the quality of his communications with his public defender. Id. The division ultimately agreed with Johnson’s primary contention and vacated his conviction on sufficiency grounds. Id. at ¶¶ 33–34, 525 P.3d at 1112.

¶11 First, the division evaluated whether Johnson’s conduct amounted to an "attempt[ ] to invite or persuade" A.W. to enter his truck. Id. at ¶¶ 16–17, 525 P.3d at 1110. In conducting this analysis, the division emphasized actions Johnson did not take, such as saying anything about his truck, gesturing for A.W. to enter, moving toward A.W. or the door of the truck, opening the door to allow her to enter, stepping out of the truck, asking her to stop walking away, or following her as she did so. Id. at ¶ 21, 525 P.3d at 1110–11. Then, looking to Colorado’s statutory definition of criminal attempt, the division concluded that "without more," Johnson’s "highly inappropriate" statements to A.W. were not " ‘strongly corroborative’ " of a " ‘firmness of … purpose to’ " invite or persuade A.W. to enter his truck. Id. at ¶¶ 21–22, 525 P.3d at 1110–11 (quoting § 18-2-101(1), C.R.S. (2023), which defines criminal attempt). The division further reasoned that Johnson’s statements did not suffice to show that he had taken " ‘all steps preparatory’ to the offense of enticement of a child." Id. at ¶ 23, 525 P.3d at 1111 (quoting People v. Miranda, 2014 COA 102, ¶ 78, 410 P.3d 520, 535). Thus, the division concluded, the evidence did not establish that Johnson had engaged in conduct constituting the "substantial step" necessary to convict a person of criminal attempt. Id. at ¶¶ 18, 23, 525 P.3d at 1110–11 (quoting § 18-2-101(1)).

¶12 The division also considered whether the evidence established that Johnson acted with the requisite intent to prove enticement of a child. Id. at ¶ 24, 525 P.3d at 1111. The division reasoned that, even if Johnson’s statements indicated that he had sexual thoughts about A.W., there was "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." Id. at ¶ 25, 525 P.3d at 1111. The division further reasoned that 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. Id. at ¶¶ 30–32, 525 P.3d at 1112.

¶13 The division thus vacated Johnson’s conviction on sufficiency grounds without addressing Johnson’s other appellate contentions. Id. at ¶¶ 12, 34, 525 P.3d at 1109, 1112. We granted the People’s petition for certiorari review.

II. Analysis

¶14 Our analysis begins with the child enticement statute:

A person commits the crime of enticement of a child if he or she invites or persuades, or attempts to invite or persuade, a child under the age of fifteen years to enter any vehicle, building, room, or secluded place with the intent to commit sexual assault or unlawful sexual contact upon said child.

§ 18-3-305(1) (emphases added). The People confine their argument to a narrow theory under this statute: that the evidence was sufficient to show that Johnson (1) attempted to invite or persuade A.W. to enter his truck (2) with the intent to commit unlawful sexual contact. We therefore confine our analysis to this theory.

¶15 First, we set forth our standard of review. Then, as a prerequisite to our review of the division’s sufficiency determination, we interpret the "attempt" language in the child enticement statute. We hold that, in this context, "attempt" does not refer to a criminal attempt as defined in section 18-2-101(1), but rather to its plain language definition.

¶16 Next, we turn our attention to the facts of this case and to each prong of the People’s theory. We conclude that a reasonable person could have found that the combination of Johnson’s words and conduct, viewed in the light most favorable to the prosecution, amounted to an attempt to invite or persuade A.W. to enter Johnson’s truck. We then explain how this same evidence could support a reasonable person’s conclusion that Johnson acted with intent to commit unlawful sexual contact. Accordingly, we hold that the evidence was sufficient to support Johnson’s conviction.

A. Standard of Review

[1–3] ¶17 We review a lower court’s interpretation of a statute de novo. McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389. "When the statutory language is unambiguous, we apply the plain and ordinary meaning of the provision." People v. Lee, 2020 CO 81, ¶ 11, 476 P.3d 351, 354. To discern the ordinary meaning, we "constru[e] undefined words...