The Colorado Supreme Court considered this week whether Jefferson County prosecutors actually had enough evidence to convict a man of a child sex crime, based on a one-minute, sexually suggestive conversation for which he is serving six years to life in prison.

Previously, the state’s Court of Appeals concluded James Clayton Johnson’s alleged comments toward a 10-year-old girl, while inappropriate, did not support the jury’s guilty verdict for the crime of enticement. During oral arguments on Tuesday, some members of the Supreme Court were sympathetic to that view, but noted they have an obligation to look at the evidence in a way that supports the prosecution’s case.

“Some people might look at that language and say that it’s not necessarily making any kind of sexual overture,” observed Justice William W. Hood III. But through the eyes of the prosecution, “it seems that is a reasonable inference.”

Jurors at Johnson’s trial heard that:

? A man driving Johnson’s truck pulled beside the victim, A.W., in a Lakewood neighborhood while she was walking her dog

? He inquired about A.W.’s name, age and address

? The man said the girl was “the perfect age for a boyfriend”

? He asked whether she had “ever touched it,” potentially referring to male genitalia

The interaction lasted approximately one minute before the man and A.W. departed in opposite directions. 

In response, prosecutors charged Johnson with enticing a child, which occurs when someone attempts to persuade a child to enter a vehicle “with the intent to commit sexual assault.” Although the identity of the man in the truck was disputed, jurors convicted Johnson. He received six years to life in prison.

However, a three-judge panel of the Court of Appeals overturned Johnson’s conviction in December 2022. Even assuming Johnson was really the man in the truck, the panel did not believe the evidence showed an attempt to persuade the victim to get in the vehicle or an intent to sexually assault her.

“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,” wrote Judge Lino S. Lipinsky de Orlov. “However, there is too large an inferential leap between those thoughts and a formed intent to act upon them by committing sexual assault.”

Lipinsky noted there were additional actions Johnson could have taken, like inviting A.W. into the truck or following A.W. down the street, that could have established guilt. The man in the truck, however, did not go that far.

The government appealed to the Supreme Court, arguing the entire context – pulling alongside a stranger and making inappropriate comments – suggested there was no “innocent explanation.” It also slammed the Court of Appeals’ list of actions Johnson did not take, arguing it “effectively shows abusers how far they can go” without committing a crime.

“He’s immediately going to talking about a penis three questions in,” Senior Assistant Attorney General Grant R. Fevurly told the justices at oral arguments, referring to Johnson. “‘Have you ever touched it?’ That can, frankly, hardly be clearer evidence of what exactly is on his mind.”

“Was he pointing when he made that statement?” asked Justice Carlos A. Samour Jr. “Pointing at his, you know, genital area?”

Nicole M. Mooney, representing Johnson, acknowledged Johnson’s behavior might have amounted to harassment. But prosecutors did not charge Johnson with that offense. Instead, she said no other court cases across the country that involved enticement of a child were based upon a defendant’s brief roadside conversation.

“There has to be more,” Mooney said. 

“He didn’t just walk up and talk to her and say, ‘Hey, where do you go to school?'” responded Chief Justice Brian D. Boatright. “There were sexual innuendo in the conversation. Is that not ‘more’?”

In addition to the Lakewood encounter, Johnson’s jurors heard about a prior incident in Louisiana, in which Johnson was criminally charged after he allegedly kissed a five-year-old girl on the mouth in his vehicle. It was unclear whether the charge resulted in a conviction. Mooney contended the evidence may have colored jurors’ perception of Johnson’s Colorado case.

“So, from your perspective, the trial court gave them license to just convict him of being a creep, essentially?” said Hood.

Although some members of the court acknowledged the danger of drawing too many conclusions about Johnson’s intent from the few facts known about the interaction, others appeared highly skeptical that there was an innocent explanation for Johnson’s conduct.

“What was he doing when he drove up to her?” asked Boatright. “What was he doing?”

The case is People v. Johnson.