People v. Douglas

• Citation: 296 P.3d 234
• Decision Date: 14 June 2012
• Docket Number: No. 09CA0781.,09CA0781.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Craig Arthur DOUGLAS, Jr., Defendant–Appellant.
• Court: Colorado Court of Appeals

296 P.3d 234

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Craig Arthur DOUGLAS, Jr., Defendant–Appellant.

No. 09CA0781.

Colorado Court of Appeals,

Div. VII.

April 12, 2012.

Rehearing Denied June 14, 2012.

John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge MILLER.

¶ 1 Defendant, Craig A. Douglas, appeals 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 appeals his sentence.

¶ 2 As issues of first impression, we conclude that:

• The prosecution presented insufficient evidence to support the Internet luring of a child and Internet sexual exploitation of a child convictions under a complicitytheory because there was no evidence that the undercover agent with whom defendant was allegedly complicit committed the crimes, and

• 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.

Accordingly, the judgment and sentences are vacated as to defendant's convictions on the Internet counts, but we affirm as to all other counts and sentences.

I. Background

¶ 3 Defendant, a resident of Pennsylvania, began communicating via the Internet and the telephone with an undercover officer in Colorado who held herself out as “Marsha” (mother), the twenty-eight-year-old mother of “Melissa” (daughter), a nine-year-old girl. Mother indicated to defendant that she would make daughter available to him for sex. Over the next ten days, defendant and mother communicated over the Internet and telephone and via text message regarding defendant's desire to come to Colorado to establish a sexual relationship with both mother and daughter. Defendant arranged to travel to Colorado, and he was arrested when he arrived.

¶ 4 Following a trial, a jury found defendant guilty of each of the five counts. The trial court sentenced defendant to consecutive sentences of ten years to life on the enticement, Internet luring of a child, Internet sexual exploitation of a child, and solicitation counts, as well as a concurrent sentence of three years on the attempt count.

¶ 5 On appeal, defendant argues that (1) there was insufficient evidence to support four of his convictions, (2) the trial court erred in instructing the jury on complicitor liability, (3) the trial court improperly admitted certain evidence and expert testimony at trial, (4) improper conduct by the prosecutor at trial requires reversal, (5) the trial court erred in imposing consecutive sentences, and (6) the attempt conviction merges into the solicitation conviction. We agree in part with his first contention, and we reject the others.

II. Sufficiency of the Evidence

¶ 6 Defendant contends 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. We agree that there was insufficient evidence to support his conviction on the two Internet counts but conclude that the evidence was sufficient to support his convictions for enticement and solicitation.

A. Standard of Review

¶ 7 In reviewing a sufficiency claim, we view the evidence in the light most favorable to the prosecution. People v. Oram, 217 P.3d 883, 887 (Colo.App.2009), aff'd,255 P.3d 1032 (Colo.2011). We then evaluate whether the evidence is sufficient to allow a reasonable person to conclude that the defendant is guilty beyond a reasonable doubt on the elements of the offense charged. Id. When the prosecution fails to present sufficient evidence of the offense charged, double jeopardy prevents the prosecution from again trying the accused on the charge. People in Interest of H.W., 226 P.3d 1134, 1138 (Colo.App.2009).

¶ 8 To the extent that defendant's arguments turn on a question of statutory interpretation, our review is de novo. People v. Vecellio, 2012 COA 40, ¶ 13, 292 P.3d 1004. In construing a statute, we must effectuate the intent of the General Assembly, which is charged with defining criminal conduct and establishing the legal components of a crime. Id. at ¶ 14. We begin with the plain language of the statute, reading the words and phrases in context and construing them according to their common usage. Id. If the statutory language is clear and unambiguous, we apply it as written without resort to further statutory analysis. Id.

B. Internet Counts

¶ 9 Defendant first argues that there was insufficient evidence supporting his 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. We agree.

¶ 10 As relevant here, an actor commits the crime of Internet luring of a child if

the actor knowingly communicates over a computer or computer network [or] telephone network ... to a person who[m] the actor knows or believes to be under fifteen years of age and, in that communication or in any subsequent communication ... describes explicit sexual conduct ... and, in connection with that description, makes a statement persuading or inviting the person to meet the actor for any purpose....

§ 18–3–306(1), C.R.S.2011. Section 18–3–405.4(1), C.R.S.2011, provides, in relevant part, that an actor commits the crime of Internet sexual exploitation of a child if

the actor knowingly importunes, invites, or entices through communication via a computer network or system [or] telephone network ... a person whom the actor knows or believes to be under fifteen years of age ... to:

(a) Expose or touch the person's own or another person's intimate parts while communicating with the actor via a computer network or system [or] telephone network ...; or

(b) Observe the actor's intimate parts via a computer network or system [or] telephone network....

¶ 11 During closing argument, the prosecutor admitted that there was no “direct proof that [defendant] talked dirty to the child either on the computer or on the telephone.” Accordingly, the prosecutor relied exclusively on a theory of complicitor liability, arguing that defendant and mother were “complicitors in using this computer in order to arrange the sexual liaison with the child.”

¶ 12 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, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963) (“It is generally recognized that there can be no conviction for aiding and abetting someone to do an innocent act.”).

¶ 13 Here, the trial court gave the following stock complicity instruction:

A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt:

1. A crime must have been committed.

2. Another person must have committed all or part of the crime.

3. The defendant must have had knowledge that the other person intended to commit all or part of the crime.

4. The defendant did intentionally aid, abet, advise, or encourage the other person in the commission or planning of the crime.

¶ 14 At trial, the prosecutor conceded that there was no evidence that defendant directly committed the crimes of Internet luring of a child or Internet sexual exploitation of a child as a principal. Neither did the prosecutor proffer any evidence that mother, 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. Therefore, we conclude that the prosecution failed to prove beyond a reasonable doubt that an Internet crime was committed. Accordingly, there was insufficient evidence to prove either that defendant was directly liable for the Internet crimes as a principal or that he was liable as an accomplice for mother's commission of the crimes.

¶ 15 Thus, we vacate defendant's convictions for Internet luring of a child and Internet solicitation of a child.

C. Enticement of a Child

¶ 16 Defendant next contends that there was insufficient evidence to support his conviction for enticement of a child because (1) there was no evidence he directly communicated with a child or a person he believed to be a child, and (2) mother invited him to stay at her home while he was in Colorado and there was no evidence he attempted to invite or persuade daughter to enter any more secluded place. We are not persuaded.

¶ 17 As relevant here, an actor 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...