Court of Appeals, April 12, 2012

2012 COA 57. No. 09CA0781. People v. Douglas, Jr. Attempted Sexual Assaulton a Child—Enticement and Solicitation—Internet Luring and Sexual Exploitation—Evidence—Intent and Motive—Expert or Lay Witness Testimony—Prosecutorial Misconduct—Consecutive Sentences.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted sexual assault on a child, enticement of a child, Internet luring of a child, Internet sexual exploitation of a child, and solicitation to commit sexual assault on a child by one in a position of trust. He also appealed his sentence. The judgment was affirmed in part and vacated in part, and the sentence was affirmed.

Defendant and “Marsha” (mother), who actually was an undercover officer, communicated over the Internet and telephone and via text message regarding defendant’s desire to come to Colorado to establish a sexual relationship with her and her 9-year-old daughter. Defendant arranged to travel to Colorado, and he was arrested when he arrived.

Defendant contended that the convictions for (1) Internet luring of a child; (2) Internet sexual exploitation of a child; (3) enticement of a child; and (4) solicitation must be vacated because the prosecution failed to present sufficient evidence to prove the elements of each offense beyond a reasonable doubt. There was insufficient evidence supporting defendant’s convictions for Internet luring of a child and Internet sexual exploitation of a child because there was no evidence that defendant himself committed the crimes or that he acted as an accomplice to a principal who committed the crimes.

The court actually addressed complicity directly in this opinion, and stated the following:

Complicity is a theory whereby a defendant is legally accountable for a criminal offense committed by another person. Grissom v. People, 115 P.3d 1280, 1283 (Colo. 2005); Bogdanov v. People, 941 P.2d 247, 250 (Colo. 1997),abrogated on other grounds by Griego v. People, 19 P.3d 1, 8 (Colo. 2001). To be liable as an accomplice, an actor must aid, abet, advise, or encourage another person in planning or committing a crime with the intent to promote or facilitate commission of the crime. See § 18-1-603, C.R.S. 2011. Accordingly, to convict a defendant of complicity, it is necessary for the prosecution to prove that the underlying crime was committed. See Shuttlesworth v. City of Birmingham, 373 U.S. 262, 265 (1963) (“It is generally recognized that there can be no conviction for aiding and abetting someone to do an innocent act.”). 

The court found that the defendant, despite talking with the alleged 'mother' of the subject child, did not meet the elements of the underlying crime, nor did the evidence of mother's conversations with him.    To do so, the evidence would need to demonstrate that

"while using a computer or telephone network, (1) knowingly described explicit sexual conduct to a child under fifteen years old and attempted to persuade that child to meet her or (2) knowingly importuned a child under fifteen years old to expose or touch the child’s own or another’s intimate parts or observe mother’s intimate parts."  

The district attorney conceded there was no such proof during the evidence, and argument, and the charge failed for lack of evidence.

As to the solicitation charge, the prosecution was not required to prove that defendant communicated directly with the child; communication with mother as an adult intermediary was sufficient. Further, one may be guilty of enticement by inviting or persuading a child to enter a room within the child’s home with the proscribed intent. Finally, there was sufficient evidence to find defendant guilty of solicitation under the theory that he attempted to persuade mother to act as his accomplice in his commission of sexual assault on a child by one in a position of trust.

Defendant also contended that the trial court erred in admitting evidence of other similar acts and alleged child pornography. This evidence, however, was properly admitted to show intent and motive.

Defendant also argued that the trial court erred in permitting the undercover officer to present expert testimony in the guise of lay witness testimony. The undercover officer’s interpretation of her conversations with defendant did not depend on her specialized skills and training as a police officer. Therefore, any error was harmless.

Defendant further contended that prosecutorial misconduct required reversal. The court instructed the jury not to consider the prosecution’s characterization of the photographs as “child pornography,” and the jury was permitted to see the actual photos to make this determination themselves. Additionally, the prosecutor’s use of the term “grooming” was not improper. Therefore, any error on these issues was harmless.

Defendant also contended that the court erred in imposing consecutive sentences on the enticement and solicitation counts. The court did not abuse its discretion in imposing consecutive sentences in this matter. First, the evidence supporting each count was not identical. Second, the two crimes did not “arise out of the same incident,” because the communications between defendant and mother took place over a period of ten days. Finally, the attempted conviction is not a lesser-included offense of the solicitation conviction.