Saturday, April 14, 2012

Colorado Court of Appeals People v. Douglas 09CA0781

Decision here.

   Douglas lived in Pennsylvania, and met "Marsha" on the internet.  Unbeknownst to Douglas, Marsha was an undercover officer.  Marsha and Douglas arranged for Douglas to visit them in Colorado, where he would have sex with both Marsha and her nine year old daughter, and where they would be a family.  There's a lot of nasty stuff in the decision, such as Douglas talking about having a "no clothes" rule in the house, and suggesting that he sit between mother and daughter on the couch and Marsha could teach her daughter how to suck.

   Douglas flew out to Colorado to meet Marsha and start his new life.  He was arrested upon arrival, and eventually convicted 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 appealed his conviction.

   Regarding Internet luring of a child and Internet sexual exploitation of a child... the prosecution sorta dropped the ball on those ones.  He was charged as a complicitor in those crimes.  Colorado's complicity statute holds that a defendant is legally accountable for crimes committed by another person if the defendant aids, abets, advises, or encourages the other person in committing the offense.  Douglas was charged as Marsha's complicitor, but the Court of Appeals held that since Marsha didn't actually commit any crime, the evidence was insufficient to convict Douglas as her complicitor in anything.  Those two convictions were reversed.

   Regarding enticement of a child, Douglas argued that the evidence was insufficient to prove that as well.  Someone is guilty of that 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.  It is not necessary to a prosecution for attempt under this subsection (1) that the child have perceived the defendant's act of enticement."  Douglas argued that he was not guilty because he did not communicate directly with the child, and because the "secluded place" in question was Marsha's house (where Douglas was invited and the child was already going to be).  The court held that this was still a secluded place under the statute, and that acting through an intermediary (in this case, Marsha) to invite or persuade a child also satisfied the statute.

   Douglas argued that since he never arranged for Marsha to directly engage in sexual assault on her daughter, he never committed solicitation to commit sexual assault on a child by one in a position of trust.  The court held that since Douglas was trying to enter a familial relationship with the nine year old who he was going to have sex with, the trial court could have convicted him of the position of trust crime either for the acts he was arranging to engage in or for the acts he was arranging for the mother to engage in.

   All Douglas' convictions (other than the two internet crimes) were upheld.

   Douglas also challenged the admission of certain evidence of previous acts (some child porn on his computer, and a sexually explicit chat with a juvie).  Douglas wasn't being charged with crimes for these (probably since he was charged under Colorado law and those acts didn't occur in Colorado), but they were admitted to show his intent for the current crimes.  The court held that since Douglas was arguing that his primary interest in the child was companionship, this evidence was relevant to show his intent; and that it wasn't unduly prejudicial because there was other evidence related to his attempted sex crimes against Marsha's daughter.  Douglas also argued that "Marsha" shouldn't have been allowed to testify as an expert to the sexual meaning of certain parts of their on-line communications.  The court held that cops are frequently qualified as expert witnesses, but that in this case Marsha could testify as a lay witness to her understanding of the meaning of the statements.

   There's also some sentencing discussion in this decision, for those who are interested.

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