No actual child necessary to attempt to lure a child
In Johnson v. State, the Nevada Supreme Court again addresses the issue of whether it is possible to be convicted of attempting to lure a child under NRS 201.560, when the child in question was actually an adult law enforcement officer posing as a child on the Internet.
You may recall that last December, in State v. Colosimo, 142 P.3d 352 (2006), the Court reversed a conviction for luring a child, because the “child” in that case was also an adult law enforcement officer. The relevant statutory language provided: “A] person shall not knowingly contact or communicate with or attempt to contact or communicate with a child who is less than 16 years of age and who is at least 5 years younger than the person with the intent to persuade, lure or transport the child . . .” The court held that because the statute required the contact to be with a “child who is less than 16 years of age,” the conviction could not stand.
That decision led to a change in the law in the recent legislative session, where AB72 amended the statute’s language to include the perpetrator’s belief that the person with whom he is communication is a child under the age of 16. Governor Gibbons signed the bill into law on September 18.
Meanwhile, the Court must deal with the cases brought under the old language. In this case, Johnson was fooled by several undercover officers posing as 14 year olds. Due to the content of online communications, Johnson was charged with attempting violation of NRS 201.560, and entered a plea to one count. In a habeas proceeding, he raises the impossibility defense, and also claimed ineffective assistance of counsel.
The Court affirmed the conviction, holding that because the conviction here was for attempt, the defendant’s intent, rather than what he could actually have done, is the key issue. Johnson hoped to lure a child, even though he was himself the one being reeled in.
