The Colorado Supreme Court on Tuesday concluded the state’s second-highest court wrongly overturned a man’s Jefferson County conviction for a child sex offense, determining the evidence was sufficient after all to find him guilty.

James Clayton Johnson is serving six years to life in prison after jurors convicted him of enticement. The offense requires someone to attempt to persuade a child to enter a vehicle or “secluded place” with an intent to commit unlawful sexual contact. Previously, the Court of Appeals found prosecutors failed to prove either portion of the offense.

But the Supreme Court believed Johnson’s lewd comments toward a 10-year-old girl and his behavior during the brief interaction did support a guilty verdict if the Court of Appeals had correctly viewed the evidence most favorably to the prosecution’s narrative.

“Even absent descriptions of specific sexual acts, courts have relied, at least in part, on defendants’ explicit sexual conversations with child victims to find the requisite intent to support a conviction under enticement and enticement-like statutes,” wrote Justice Monica M. Márquez in the May 28 opinion.

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. He disputed he was the driver of the truck, as the victim identified another man in a photo lineup. A three-judge panel for the Court of Appeals ultimately decided that even if Johnson was the driver, the “highly inappropriate” statements did not prove enticement.

As for Johnson’s alleged attempt to persuade A.W. to enter the truck, Judge Lino S. Lipinsky de Orlov noted what the evidence did not show — specifically, any words or gestures to get A.W. into the truck or an attempt to stop her when she walked away. Similarly, it was unclear that Johnson’s intent was to commit unlawful sexual contact.

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

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.”

Márquez, in the court’s opinion, did not address the dispute over the driver’s identity. Instead, she agreed the Court of Appeals failed to appreciate that Johnson’s actions could amount to “steering the conversation toward asking A.W. to enter Johnson’s truck — likely so she could ‘touch it.'”

“Johnson’s question about whether A.W. had ever ‘touched it’ can reasonably be viewed as the beginning of an invitation to do precisely that. And because that would constitute unlawful sexual contact, we conclude that the evidence was sufficient to prove that Johnson acted with the intent,” Márquez added.

The Supreme Court returned the case to the Court of Appeals to address Johnson’s other grounds for appeal, including his claim that the jury improperly heard how he allegedly persuaded a 5-year-old girl in Louisiana to enter his car and kissed her. Márquez noted the Supreme Court believed the evidence was sufficient to convict Johnson even without considering the Louisiana encounter.

The case is People v. Johnson.